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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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just to make sure it's clear, would you just go over with [defendant] the fact that he was represented by counsel who's withdrawn and he is representing himself.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 today, that attorney has withdrawn from the case, and you're willing to forward [sic] without that attorney, right?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 ...