April 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT JUSTICH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 2009-024.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011
Before Judges Rodriguez and LeWinn.
Defendant appeals from the October 15, 2009 order of the Law Division "den[ying]" his "appeal de novo from his conviction in Millburn Municipal Court for [s]imple [a]ssault pursuant to N.J.S.A. 2C:12-1(a)." We affirm, but remand for entry of a proper judgment finding defendant guilty following trial de novo and imposing sentence. Rule 3:23-8(e).
The victim of the simple assault was defendant's wife; the charge stemmed from an incident on December 10, 2008, that led his wife to seek a domestic violence temporary restraining order (TRO) in the Family Part where the parties' divorce litigation was pending. The municipal complaint simultaneously issued against defendant alleged that he did "knowingly or recklessly caus[e] bodily injury to [his wife] by throwing [her] against a desk injuring her right upper thigh and forcefully shoving her."
On December 22, 2008, which was the return date for the hearing on a final restraining order, the parties both appeared before the Family Part with counsel and entered into a consent order under their divorce docket; that order provided, in pertinent part, that the TRO was dismissed and that his wife "shall cooperate with the [d]efendant and the [p]rosecutor in the pending [m]unicipal matter, . . . in seeking to have the [c]omplaint dismissed against the [d]efendant."
On May 5, 2009, notwithstanding the provision in the consent order, trial proceeded in Millburn Municipal Court on the simple assault complaint. At the very outset of proceedings, the following colloquy occurred between the judge, the prosecutor and defendant:
THE COURT: . . . You entered a not guilty plea on April 21, 09. Do you still maintain that? [DEFENDANT]: Yes, I do.
THE COURT: All right. [Prosecutor]? [PROSECUTOR]: And, Judge, just for the record although we did the last time, just to make sure it's clear, would you just go over with [defendant] the fact that he was represented by counsel who's withdrawn and he is representing himself.
THE COURT: . . . Okay. [PROSECUTOR]: Can we go over that with him? THE COURT: Yes, please. [PROSECUTOR]: [Defendant], you were represented by an attorney prior to today's date, correct? [DEFENDANT]: Correct. [PROSECUTOR]: All right. And . . . today, that attorney has withdrawn from the case, and you're willing to forward [sic] without that attorney, right? [DEFENDANT]: Yes. [PROSECUTOR]: And by going forward, you're waiving your right to have an attorney represent you or to have a [p]ublic [d]efender appointed should you be able to not [sic] afford an attorney. You understand that, right? [DEFENDANT]: Yes.
The prosecutor thereupon called defendant's wife to testify. Defendant raised no protest nor did he refer to the provision in the parties' consent order.
Defendant's wife testified that on October 10, 2008, she had come home around 1:30 p.m., having been at her attorney's office; she had received text messages on her cell phone from defendant that she considered to be "showing some increasing aggravation and anger." Defendant came home and confronted her in the kitchen where she was standing by a desk. "He came in the door and said, you lost $1 million today, put . . . both his open hands against [her] shoulders, . . . and shoved [her] into [the desk]." Her "thigh ran into the edge of the desk" and she recalled it "hurting quite a bit." She developed bruising on her thigh and "it became very sensitive . . . for a period of several weeks." The State introduced photographs that she had taken of her bruising two days after the incident.
She then went upstairs, looking for her phone, because she wanted to leave for an appointment and to pick up her child from school. She went into a bedroom on the second floor, where defendant had gone; defendant arose from a desk across the room and "step[ped] towards [her] . . . aggressively and with . . . open palms against [her] shoulders pushed [her] back and said, get the hell out of my room." She "stumbled into the hallway" and backed up against a banister; she was "very afraid [she] was going to [g]o over that" and fall into "the open area down into the center hall[,]" which she described as a twelve-foot drop. She then "went and hid until" defendant left the residence.
Defendant testified and denied that anything occurred in the kitchen. He asserted that the second-floor bedroom into which his wife entered was his and was also his office, and that she came in looking for her phone, found a phone on the bed and threw it at him. He denied physically touching his wife at any time during this incident.
The municipal judge reviewed the evidence and found that defendant "did push his wife in the kitchen and caused her to hit the desk, and . . . upstairs . . . he did push her again." The judge concluded:
I don't think he meant to hurt her. That's for sure. But I do believe you were upset, and maybe you don't even remember half of the things. But I do believe that happened, and I have to find you guilty beyond any reasonable doubt. But, again, this is a tough situation. I know that.
The judge sentenced defendant to pay a $400 fine, $33 in costs and $125 in statutory assessments; he also ordered defendant to attend an anger management counseling program.
Defendant was represented by counsel in the Law Division. He argued that his wife had agreed "not [to] pursue the municipal complaint against [him]," and, therefore, he was "bamboozled" by the proceedings. Defendant further argued that the municipal judge had failed to give him adequate advice about the consequences of a conviction for simple assault and the risks of appearing pro se.
The judge noted that the parties' consent order under their matrimonial docket did not "bind the [p]rosecutor's [o]ffice" to pursue it. The judge further found that the effect of the order upon the wife's credibility had been addressed by the municipal judge who found that "[i]t doesn't matter."
Respecting defendant's second argument, the judge noted that defendant had initially been represented by counsel in municipal court, as evidenced by the colloquy immediately prior to trial. Defendant had not produced a transcript of the previous municipal court proceeding at which his attorney had appeared, and the Law Division judge found no basis in the record to conclude that defendant had not been adequately advised of the risks and consequences of a disorderly persons conviction by that attorney. The judge rejected defendant's reliance upon State v. Abbondanzo, 201 N.J. Super. 181 (App. Div. 1985), as support for his argument that he was prejudiced by the municipal judge's failure to advise him of possible "incarceration exposure before determining there has been an effective waiver of counsel." Id. at 185.
The judge concluded:
I do find that the record below does present a fact of the defendant's waiver of counsel and that any perceived misunderstanding or injustice that was occurring he did not raise at the time and therefor[e] had waived that issue.
Lastly, . . . the record below does provide adequate evidence upon which the [j]udge below could reasonably reach his decision and this [c]court finds no basis for overturning that.
Therefor[e], the judgment of the [m]unicipal [c]court is affirmed in all instances.
On appeal, defendant raises the following contentions for our consideration:
DEFENDANT DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HIS RIGHT TO COUNSEL
THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD BE DISMISSED AS A MATTER OF LAW
DUE PROCESS AND FUNDAMENTAL FAIRNESS REQUIRE THAT THE CONVICTION BE VACATED
Having considered these arguments in light of the record and the controlling legal principles, we are satisfied that they "are without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), beyond the following comments.
It is clear from the transcript of May 5, 2009, that defendant had previously appeared in municipal court on April 21, 2009, with counsel and entered a plea of not guilty. His attorney was then apparently relieved as counsel. On May 5, the prosecutor asked to "go over with [defendant] the fact that he was represented by counsel who's withdrawn and he is representing himself[,]" which, the prosecutor noted, "we did the last time."
"It is for the court to determine whether an accused has knowingly and intelligently waived th[e] right [to counsel] and to establish the waiver on the record." State v. Crisafi, 128 N.J. 499, 509 (1992) (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023, 82 L.Ed. 1461, 1467 (1938)). In the absence of a transcript of what transpired on April 21, we cannot conclude that the municipal judge failed in this duty on that occasion. The colloquy on May 5 was the second discussion with defendant of his decision to proceed pro se. On this record, we are satisfied that the Law Division judge properly rejected defendant's reliance upon State v. Abbondanzo, where the record clearly demonstrated that the defendant in that case "did not knowingly and intelligently waive his . . . right to counsel at the trial before the municipal court." 201 N.J. Super. at 184.
Defendant's claim that he was "bamboozled" is without merit. He was represented by counsel in the Family Part when the consent order was signed. It is clear beyond question that the municipal prosecutor was not bound by the provision in that order regarding his wife's willingness to "cooperate" in dismissing the simple assault charge. We presume, therefore, that defendant's attorney so advised him at the time. In any event, notwithstanding his claimed reliance upon that order, defendant proceeded to trial without protest and vigorously defended himself.
Defendant's weight-of-the-evidence argument is premised upon the municipal judge's comment that he "didn't think defendant meant to hurt" his wife. The judge did find, however, that defendant "push[ed] his wife in the kitchen and caused her to hit the desk, and . . . upstairs . . . he did push her again."
Such conduct clearly constitutes simple assault, which N.J.S.A. 2C:12-1(a)(1) defines as "[a]ttempt[ing] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another." "Not much is required to show bodily injury." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997) (citing N.J.S.A. 2C:11-1(a), which defines "bodily injury" as "physical pain, illness or any impairment of physical condition").
Furthermore, "'[e]ven the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey Law.'" Ibid. (quoting New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995)). The municipal judge found that defendant pushed his wife twice; the record establishes that the first push injured her and the second one frightened her.
Moreover, this appeal is from the decision rendered upon de novo review in the Law Division. That judge appropriately deferred to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999). In doing so he made it clear that he relied on his own independent findings of fact and guilt after reviewing the evidence in the municipal court record. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). Furthermore, when the Law Division judge agrees with the municipal judge, the "two-court rule" must be considered, pursuant to which "appellate court ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474. No such showing has been made here.
Defendant's final point asserts an argument not raised before the Law Division, namely that the municipal prosecutor hampered defendant's ability "to properly defend himself" by "objecting to every question." We will not consider issues not raised before the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, this point is without merit. At the outset of defendant's testimony, the judge stated: "You tell me your side of the story." Defendant thereupon proceeded at length, and uninterrupted, to present his defense.
Affirmed, but remanded to the Law Division for entry of judgment in conformance with Rule 3:23-8(e).
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