State of New Jersey v. E.K. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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"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
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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
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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
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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
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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,
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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.
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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
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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
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criminal proceedings and addresses his knowing and voluntary waiver of his
presence during criminal proceeding, not virtual participation.
Affirmed.
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