On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5938.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012 -
Before Judges Payne and Reisner.
Defendant, Lawrence Jenkins, appeals from a judgment finding him guilty of simple assault that was entered against him following a trial de novo in the Superior Court on the record made in a municipal proceeding. On appeal, defendant raises the following arguments for our consideration:
Point I The Failure Of The Complainant's Private Attorney To Comply With The Prerequisites In [Rule 7:8-7(b)] For Becoming A 'Municipal Prosecutor For The Day' Is A Fatal Defect In Defendant's Conviction, Does Not Require A Showing Of Prejudice For Reversal, And Is Not A Candidate For Harmless Error Analysis. (Not Raised Below.)
Point II The Complaint Filed By The State Trooper Must Be Dismissed Because It Is Based On Hearsay And Unsupportable As A Matter Of Law. (Partially Raised Below.)
We reverse the judgment entered in this matter.
The record on appeal discloses that on December 24, 2007, a dispute arose between New Jersey Turnpike Authority toll taker, Jean Fils-Aime and his supervisor, Jenkins, while the two were working at Exit 13A. The police were called, and State Trooper Tanis responded. After taking statements from Jenkins and FilsAime, being offered a statement by co-employee George Byrd, and observing a swelling on Fils-Aime's cheek, Trooper Tanis issued a complaint against Jenkins, charging him with simple assault, N.J.S.A. 2C:12-1a. Thereafter, cross-complaints charging simple assault were filed by Fils-Aime and by Jenkins.
The matter was first brought before the municipal court on March 6, 2008, upon the State's motion to quash a subpoena that had been served on it. However, following the parties' mutual agreement to dismiss their complaints, the motion was withdrawn. Although the agreement was allegedly later confirmed in a letter from counsel for Fils-Aime,*fn1 when the parties next appeared before the court on April 10, 2008, it was disclosed that FilsAime had retained new counsel, who sought to proceed with the matter. It was therefore adjourned.
On September 9, 2008, the parties again appeared in municipal court and, after agreeing that the three complaints should be tried together, the State presented its case by calling Trooper Tanis. The Trooper, who was not present when the alleged incident took place, testified without objection to receiving Byrd's statement, which Byrd had provided to the Turnpike Authority, and taking unverified statements from Jenkins and Fils-Aime as to their versions of events.*fn2 According to Trooper Tanis, Byrd had not observed the alleged assault by Jenkins on Fils-Aime, although he had observed a verbal confrontation that preceded it. Fils-Aime, Trooper Tanis testified, had told him that Jenkins struck him in the face, whereas Jenkins stated that he had been threatened by Fils-Aime. Trooper Tanis also testified to his observation that Fils-Aime's cheek was swollen - a matter that was corroborated by photographs, taken at an unspecified time by an unidentified individual.*fn3 Jenkins was reported as having no injuries. Trooper Tanis testified that, as the result of his review of the statements by Jenkins and Fils-Aime and his observation of FilsAime's cheek, he determined to file a complaint for simple assault against Jenkins.
At the conclusion of Trooper Tanis's testimony, the State rested, stating to the court: "Your Honor, the State has no other witnesses in connection with the matter against Lawrence Jenkins . . . . The State rests." The matter was then adjourned to a later date.
Trial of the matter resumed on January 22, 2009. At that time, the court excused the municipal prosecutor from further participation in the proceedings and permitted counsel for FilsAime and Jenkins to prosecute the parties' cross-complaints. Although both counsel had executed forms entitled "Rule 7:8-7(b)
Certification Application for Appointment as Private Prosecutor" in June 2008, the court did not indicate on the record that it had received or reviewed the forms or state on the record that it was "satisfied that a potential for conflict exist[ed] for the municipal prosecutor due to the nature of the charges set forth in the cross-complaints" as the Rule requires. Further, examination of the certification supplied ...