On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 56-09-P.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011
Before Judges Fisher and Nugent.
In this appeal of a driving-while-intoxicated (DWI) conviction, N.J.S.A. 39:4-50, defendant contends there was a "structural rift" in the municipal proceedings because he was not present nor afforded the right to be present when the judge rendered an oral opinion finding defendant guilty. Because that oral opinion was lost and because the municipal judge rendered a new oral opinion -- while defendant and his counsel were present -- to replace it, we answer negatively what could be said to be the legal version of the metaphysical cliche: "if a tree falls in the woods and no one is present, does it make a sound?"
On July 23, 2009, during summations in municipal court, the judge acceded to defense counsel's request to submit a memorandum of law on a particular point of law no longer relevant. The judge suggested and counsel agreed as follows as to how the matter would thereafter proceed:
THE COURT: All right. Okay. So you'll [submit a memorandum of law]?
PROSECUTOR: I -- he'll [defense counsel] do it, not me.
DEFENSE COUNSEL: Yeah. I could provide that.
THE COURT: Right. Yeah. That's what I mean. You'll provide it to each of us. And then that's it, then the case is over. DEFENSE COUNSEL: Yes, sir.
THE COURT: The case is closed.
PROSECUTOR: As far as I know.
THE COURT: That's it, and then I -- then I ...