State of New Jersey v. E.K.

• Court: New Jersey Superior Court Appellate Division
• Decided: July 5, 2024
• Docket: A-1503-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1503-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.K.,1

Defendant-Appellant. _______________________

Submitted February 5, 2024 – Decided July 5, 2024

Before Judges DeAlmeida and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. A-05-22.

Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the briefs).

Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney for respondent (Narline Camisir, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

1 We identify defendant by initials to protect the identity of the victim of domestic violence. R. 1:38-3(c)(12). PER CURIAM

Defendant, E.K., appeals his conviction for simple assault, N.J.S.A.

2C:12-1(a)(1), after de novo trial in the Law Division. He argues: 1) the virtual

nature of the municipal court proceedings and his alleged failure to consent to a

virtual trial violated his due process rights; 2) the municipal court improperly

admitted impermissible and prejudicial evidence; 3) his trial counsel was

ineffective; and 4) there was insufficient evidence to sustain his conviction. We

are unpersuaded and affirm the Law Division's judgment of conviction.

I.

The Law Division found the following facts, based on the testimony given

before the Franklin Township Municipal Court. Defendant was initially charged

with aggravated assault, but that charge was downgraded to simple assault,

N.J.S.A. 2C:12–1(a)(1), and the matter was transferred to municipal court. Prior

to trial, the court inquired as to whether the trial could proceed virtually because

of the COVID-19 pandemic or in person, and defendant's counsel confirmed he

preferred a virtual trial because of personal medical reasons. The court also

addressed defendant personally regarding this decision, and confirmed the trial

would be virtual. Defendant replied "ok" and did not raise any objection. The

trial before the municipal court proceeded virtually.

A-1503-22 2 Two witnesses testified at trial: defendant and his wife, K.O. The

witnesses gave differing accounts of what occurred during the altercation. The

parties agreed that on January 23, 2021, defendant and K.O. argued over their

daughter's missing birth certificate, which led to a physical altercation in the

presence of their three children. Both witnesses testified the other was the

aggressor. Specifically, K.O. testified defendant escalated their argument by

punching her in the face, injuring her eye, and causing her to fall to the ground.

She stated they were "into each other's face," but she did not physically touch

defendant, except to hold his shirt when she got up from the ground. She

testified, after seeking medical treatment and as a result of the injury, she

developed glaucoma requiring medication. However, the municipal court judge

found "[n]o competent medical evidence was presented by the State with regard

to this diagnosis." The municipal court judge characterized her testimony as

"indicating that she did not call the police on the date of the incident but later

filed a report after consideration of and making a vague reference to past abuse."

Over the State's objection, defendant's counsel was permitted to engage

K.O. in a line of questioning to demonstrate the assault accusation was being

made to "posture" in a pending custody litigation. In response, K.O. testified

A-1503-22 3 "defendant . . . [had] subjected [her to] pushing, shoving, placing his hands on

her neck, and constant verbal abuse" in the past.

Defendant offered a different version of events. He confirmed the genesis

of the argument, but stated K.O. initiated the physical altercation by "slapping

him during the argument." Further, he claimed that while he was trying to evade

her, both of his sons were attempting to pull him away and she began to hit them,

which allowed him to escape to another room. To support this testimony

defendant offered two exhibits: a photo of himself showing a bloody lip and a

video of their twelve-year-old daughter, where she stated defendant did not

physically assault her mother and "her mother was the aggressor." Both exhibits

were admitted. Defendant denied striking his wife.

The municipal court found defendant guilty of simple assault, imposed a

fine, plus costs and assessments, and declined to order any jail time. The

municipal judge stated he "believe[ed] the victim" and concluded K.O.'s delay

in reporting the incident and lack of photos of the injury did not weigh into his

determination of her credibility. The judge mentioned his experience with

individuals seeking temporary restraining orders to explain why the delay in

K.O. notifying police did not weigh against her and was dependent on the

A-1503-22 4 circumstances. The municipal judge also noted there was not sufficient evidence

of K.O.'s alleged medical diagnosis.

Defendant appealed his conviction to the Law Division, presenting nine

arguments. After conducting a de novo trial based on the municipal court

record, the Law Division issued a written opinion and order finding defendant

guilty of simple assault in violation of N.J.S.A. 2C:12-1(a)(1), imposing the

same penalties and fines as the municipal court, and amending the final

judgment of conviction to include a $100 domestic violence surcharge to

defendant's fine as "required by N.J.S.A. 2C:25-19."

II.

Defendant now appeals his conviction by the Law Division. He posits the

following arguments:

POINT I- DEFENDANT WAS DEPRIVED OF HIS RIGHT TO AN IN-PERSON TRIAL IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPHS 1 AND 10 OF THE NEW JERSEY CONSTITUTION; DEFENDANT’S COUNSEL WAS INEFFECTIVE, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION, IN PRECIPITATING THE VIRTUAL TRIAL OR ALLOWING IT TO HAPPEN WHEN HE HAD A DUTY TO LEAVE THE QUESTION TO THE DEFENDANT AND HONOR

A-1503-22 5 THE DEFENDANT’S RIGHT, WHICH WAS OFFERED BY THE COURT, TO AN IN-PERSON TRIAL.

POINT II- THE MUNICIPAL JUDGE HEARD INADMISSIBLE AND PREJUDICIAL EVIDENCE THAT, CUMULATIVELY, UNFAIRLY PREJUDICED THE DECISION-MAKING JUDGE AGAINST DEFENDANT.

POINT III- THERE IS NOT SUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD TO UPHOLD THE FINDING OF THE LAW DIVISION.

Our review of a Law Division's determination following a de novo

conviction by the Law Division is limited. State v. Clarksburg Inn, 375 N.J.

Super. 624, 639 (App. Div. 2005); see State v. Locurto, 157 N.J. 463, 470

(1999). On an appeal of a municipal conviction to the Law Division, the Law

Division must decide the matter de novo based on the record developed before

the municipal court. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div.

2011) (citing R. 3:23-8(a)). We review "the action of the Law Division and not

that of the municipal court," Adubato, 420 N.J. Super. at 175-176, to decide

whether the factual findings were supported by sufficient credible evidence in

the record, State v. Stas, 212 N.J. 37, 49 (2012) (quoting Locurto, 157 N.J. at

470-71). Where both the municipal judge and the Law Division judge have

made consistent credibility findings, we owe a particularly strong deference to

A-1503-22 6 those dual determinations. See Locurto, 157 N.J. at 474. We review the Law

Division's legal conclusions de novo. State v. Kuropchak, 221 N.J. 368, 383

(2015); see State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010).

A. Inadmissible Evidence.

Defendant contends the Law Division erred in failing to find the municipal

court judge improperly admitted and relied upon his experience as a judge who

heard applications for temporary restraining orders, and heard uncorroborated

and impermissible testimony of the victim's glaucoma diagnosis and defendant's

alleged prior history of domestic violence. We disagree.

Initially, we point out that the municipal court’s findings are not relevant

to this appeal because the Law Division made new de novo findings based on

its review of the record. See Adubato, 420 N.J. Super. at 176 (citing R. 3:23-

8(a)). Moreover, the municipal court stated in its findings of fact that it did not

consider the prior history of domestic violence, the delay in filing the complaint,

the hearsay statements of the parties' daughter, or the glaucoma diagnosis.

Therefore, the Law Division's determinations regarding this evidence are

supported by the record. Specifically, the Law Division correctly noted that

although the municipal court

heard certain evidence that may have been excluded under New Jersey Rules of Evidence (the glaucoma

A-1503-22 7 diagnosis uttered by the complainant; the past history of domestic violence elicited from both the complainant and the defendant during the course of the trial, and the pure hearsay statement admitted from the parties' [twelve-year-old] daughter), the court, essentially discounted any reliance upon those portions of asserted evidence, and found that, "I believe the victim." In making the finding of the defendant's guilt, the court did make reference to the defendant's testimony and evidence presented but found that the state's complaining witness was more credible, while not intoning those specific words.

Additionally, the Law Division correctly found the municipal judge drew from

his experience as a judge to "simply relat[e] a foundation" for his finding that

K.O.'s delay in notifying the police was "not always determinative [of] a

complainant's veracity."

B. Simple Assault.

Defendant's argument that the Law Division erred because his conviction

was not based on sufficient credible evidence is belied by the record. The Law

Division did not find K.O. was the initial aggressor, as defendant asserts.

Instead, it accepted the State's proof and found defendant engaged in a verbal

altercation with his wife, which progressed to a physical altercation where

defendant punched her with enough force that she fell back and sustained injury

to her eye, requiring medical treatment. The court acknowledged their

daughter's hearsay statement in the admitted video, upon which defendant relies,

A-1503-22 8 but did not rely upon the testimony of defendant's prior acts of alleged violence,

or the alleged medical diagnosis.

It also properly agreed with the municipal court's credibility

determinations, where the court stated it believed K.O., she was more credible,

her "testimony held up under cross examination, and her delay in reporting or

lack of photographed injuries did not weigh against her veracity." The Law

Division's findings are sufficient to sustain a conviction for simple assault. See

N.J.S.A. 2C:12-1(a).2

C. Constitutional Claims.

Defendant relies upon State v. Robertson, 333 N.J. Super. 499 (App. Div.

2000), in asserting the Law Division erred in finding the municipal court did not

violate his due process rights when it conducted the trial virtually, and his

counsel was ineffective for failing to preserve this right. He also contends the

2 A person is guilty of simple assault pursuant to N.J.S.A. 2C:12-1(a) if the person: (1) [a]ttempts to cause or purposely, knowingly, or recklessly causes bodily injury to another; or

(2) [n]egligently causes bodily injury to another with a deadly weapon; or

(3) [a]ttempts by physical menace to put another in fear of imminent serious bodily injury. A-1503-22 9 court's error was manifested during the virtual proceeding when there were many

"'inaudible' portions of testimony" in the transcript. We are satisfied the virtual

proceedings did not violate defendant's procedural due process rights or

otherwise warrant reversal.

Defendant was present when the court considered whether to hold a virtual

trial and gave his affirmative consent. Defendant never objected or questioned

the decision, even after the court addressed him specifically regarding his

schedule and whether he consented. The record does not show, and he does not

assert, he requested an in-person trial.

Fundamentally, "[d]ue process is not a fixed concept [and] requires an

opportunity to be heard at a meaningful time and in a meaningful manner. The

minimum requirements of due process, therefore, are notice and the opportunity

to be heard." Doe v. Poritz, 142 N.J. 1, 106 (1995) (citations omitted).

Defendant was present for all proceedings virtually, including his trial, and

testified. Proceedings conducted virtually, by telephone, or other electronic

means do not violate a party's due process right. See Div. of Youth & Fam.

Servs. v. M.Y.J.P., 360 N.J. Super. 426, 468 (App. Div. 2003) (holding a parent

is "afforded due process where the parent receives notice, is represented by

A-1503-22 10 counsel, and is given an opportunity to testify by telephone or deposition"); State

v. Vega-Larregui, 246 N.J. 94, 127-131 (2021).

Defendant's attorney thoroughly cross-examined the complainant,

responded to objections, and introduced evidence without difficulty. The virtual

trial was conducted appropriately without incident or deprivation of defendant's

rights. As the Law Division observed, defendant's counsel admitted the

"'inaudible' portions of the trial testimony denoted in the transcript" were

insignificant.

Lastly, defendant's reliance on Robertson, and two other rulings is

misplaced. Defendant improperly relies on Robertson, 333 N.J. Super. at 509

(holding defense counsel could not waive a defendant's presence at a hearing

unless the "defendant's conduct evidence[d] a knowing, voluntary and

unjustified absence” from the courtroom), State v. Blann, 217 N.J. 517, 518

(2014) (holding a defendant may waive his right to a jury trial if he reviews a

written waiver and the trial court "engage[s] in a colloquy with defendant[] . . .

to assess the voluntariness of a waiver request"), and State v. Tedesco, 214 N.J.

177, 189-190 (2013) (finding that "[a]lthough [a] defendant can waive his

constitutional right to appear at sentencing, he cannot force the court to sentence

him in absentia"). Each case establishes a defendant's right to be present during

A-1503-22 11 criminal proceedings and addresses his knowing and voluntary waiver of his

presence during criminal proceeding, not virtual participation.

Affirmed.

A-1503-22 12