State of New Jersey v. Terri Hannah , 448 N.J. Super. 78 ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5741-14T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 20, 2016
v.
APPELLATE DIVISION
TERRI HANNAH,
Defendant-Appellant.
___________________________________
Argued October 6, 2016 – Decided December 20, 2016
Before Judges Fisher, Leone, and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Municipal
Appeal No. 01-15.
John P. Morris argued the cause for
appellant.
Kim L. Barfield, Assistant Prosecutor,
argued the cause for respondent (Jennifer
Webb-McRae, Cumberland County Prosecutor,
attorney; Elizabeth K. Tornese, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant Terri Hannah appeals her July 10, 2015 conviction
for simple assault after a trial de novo in the Law Division,
following her conviction in municipal court. She argues that a
Twitter posting was improperly admitted into evidence, citing a
Maryland case requiring that social media postings must be
subjected to a greater level of authentication. We reject that
contention, holding that New Jersey's current standards for
authentication are adequate to evaluate the admission of social
media postings. Under those standards, we find it was not an
abuse of discretion to admit the tweet. Finding defendant's
remaining claims lack merit, we affirm.
I.
The Law Division found the following facts based on the
testimony in the Vineland Municipal Court. On September 22,
2012, Arnett Blake and his girlfriend, Cindy Edwards, attended a
party at a community center. Defendant, Blake's ex-girlfriend,
also attended the party.
While in the bathroom, Edwards encountered defendant
"making rude comments about her." While Edwards was still in
the bathroom, defendant exited the bathroom, approached Blake,
and said "I should F your girlfriend up." Later that night,
defendant purposefully bumped into Blake.
As Edwards and Blake were in the lobby trying to leave the
party, defendant quickly approached Blake with her closed fist
in the air. Blake reacted by pushing defendant away, prompting
security to grab him. When Edwards turned to say something, she
2 A-5741-14T3
saw defendant holding a high-heeled shoe, with which defendant
struck Edwards in the face. Blake also saw defendant hit
Edwards with a shoe as he was being escorted outside. When
defendant was brought outside, Edwards saw defendant did not
have her shoes on.
Edwards and Blake went to the police station to report the
incident and then went to the hospital, where Edwards received
nine stitches. After the assault, defendant and Edwards had
communications "back and forth" on Twitter. On December 28,
2012, Edwards saw defendant posted a tweet saying "shoe to ya
face bitch."
In municipal court, defendant offered a different version
of events. Defendant testified she approached Blake and told
him that she heard "hearsay . . . saying that [she] was going to
. . . beat his girlfriend up." Defendant told Blake she "wanted
to clear the air and let him know that [she was] not going to do
anything to [his girlfriend]." Later during the party he
"push[ed] [defendant] to the side." Defendant later saw Blake
in the lobby and decided to ask him why he pushed her. She
became aggressive and started yelling, and a security guard took
her "straight out . . . of the party." Defendant testified she
never saw Edwards that night and never punched anyone or hit
anyone with a shoe.
3 A-5741-14T3
Defendant called as a witness a security guard at the
party, who testified he saw defendant approaching a man "in an
aggressive manner" and heard her make hostile remarks.
"[B]efore she could do anything," the guard "snatched her up and
. . . took her out of the building." He told her she was not
permitted to reenter the party. He did not see Blake or Edwards
or see defendant hit anyone with a shoe.
Defendant was charged with aggravated assault, but the
charge was downgraded to simple assault, a disorderly persons
offense. N.J.S.A. 2C:12-1(a)(1). On January 12, 2015, the
municipal court found defendant guilty and imposed a $307 fine
plus costs and assessments. Defendant appealed. On June 5,
2015, the Law Division conducted a trial de novo, hearing oral
argument. After reserving decision, the Law Division found
defendant guilty of simple assault and imposed the same monetary
penalties. The Law Division credited Edwards and Blake, found
defendant not credible, and found the passage of two years
compromised the security guard's recollection of the event.
On appeal to this court, defendant argues:
POINT I - THE COURT'S ADMISSION OF THE TWEET
(S-4), CLAIMED BY THE STATE TO HAVE BEEN
POSTED BY THE DEFENDANT TO HER TWITTER
ACCOUNT, WAS ERROR AS:
(1) THE SUPERIOR COURT JUDGE
MISTAKENLY ADOPTED WHAT HE BELIEVED TO
BE THE DIFFERENT, MORE LENIENT TEXAS
4 A-5741-14T3
AUTHENTICATION STANDARD [RATHER THAN
THE MARYLAND STANDARD] WITHOUT
UTILIZING NEW JERSEY'S CIRCUMSTANTIAL
EVIDENCE MODE OF AUTHENTICATION,
N.J.R.E. 901, AND ASSESSING THE NON-
PRODUCTION OF THE OTHER "DIFFERENT"
SNAPSHOTS SUPPOSEDLY TAKEN BY THE
ACCUSER IN AN ALLEGED EXCHANGE OF
TWEETS BETWEEN ACCUSER AND DEFENDANT
SOME THREE MONTHS AFTER THE ALLEGED
ASSAULT;
(2) THIS JUDGE IMPROPERLY
AUTHENTICATED THE TWEET BY RELYING ON
THE ACCUSER'S TESTIMONY AS WELL AS THAT
OF THE DEFENDANT, WHO ONLY TESTIFIED
AFTER THE STATE HAD RESTED;
(3) WITH THIS JUDGE FINDING [SIC] THAT
THE DEFENDANT'S JANUARY 12, 2015
MUNICIPAL COURT TESTIMONY WAS NOT
CREDIBLE BECAUSE HE CONTRASTED HER
TESTIMONY WITH EXHIBIT D-4 ATTACHED TO
DEFENSE COUNSEL'S MAY 8, 2015 APPEAL
BRIEF; AND,
(4) THIS JUDGE ADMITTED THE TWEET,
WITHOUT ANALYSIS AS TO THE TWEET'S
RELEVANCE OR PROBATIVE VALUE.
POINT II - THE SEQUESTRATION ORDER WAS
IMPOSED AT THE START OF THE JANUARY 12, 2015
MUNICIPAL COURT TRIAL. THE SEQUESTRATION
ORDER WAS NOT ENFORCED AS THE ALLEGED VICTIM
WAS ALLOWED TO REMAIN IN THE COURTROOM BY
THE JUDGE AFTER HER TESTIMONY; ALLOWING HER
TO BE PRESENT WHILE HER BOYFRIEND TESTIFIED.
THE BOYFRIEND'S EQUIVOCAL AND SEEMINGLY
CONTRADICTORY OR "FORGETFUL" RESPONSES
STRONGLY SUGGEST VISUAL CUES FROM THE
ALLEGED VICTIM. THE LAW DIVISION JUDGE'S
WRITTEN OPINION IS DEVOID OF ANY
CONSIDERATION OR DISCUSSION OF THAT ISSUE.
THAT VIOLATION, BY ITSELF, SHOULD HAVE
RESULTED IN REVERSAL AND REMAND TO THE
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MUNICIPAL COURT WITH STRICT ADHERENCE
THEREAFTER TO THE SEQUESTRATION ORDER.
THIS DEFENDANT'S CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND A FAIR TRIAL WERE VIOLATED;
NO SHOWING OF PREJUDICE IS REQUIRED IN THESE
CIRCUMSTANCES. DEFENDANT'S CONSTITUTIONAL
RIGHTS OVERRIDE ANY CONSTITUTIONAL RIGHTS OF
A VICTIM OF CRIME. THIS TRIAL INVOLVED NOT
A CRIME BUT A DISORDERLY PERSON'S OFFENSE.
[CONSTITUTIONAL ASPECT NOT RAISED BELOW].
POINT III - THE RELIEF REQUESTED ON THE
APPEAL SOUGHT REVERSAL AND REMAND FOR TRIAL
IN THE MUNICIPAL COURT, R. 3:23-8(a)(2);
RELIEF MANDATED FOR SUPPLEMENTATION OF THE
MUNICIPAL COURT RECORD: (1) TO ALLOW
DEFENDANT THE OPPORTUNITY TO RESPOND TO THE
ADVERSE INFERENCE DETERMINATION MADE AGAINST
HER BY THE MUNICIPAL COURT JUDGE, (2) TO
ALLOW THE STATE TO ATTEMPT TO ESTABLISH
AUTHENTICATION OF THE TWITTER POSTING, AND,
(3) TO ALLOW THE MUNICIPAL COURT TO DEAL
WITH THE, AS YET, UNRESOLVED ISSUE OF
SEQUESTRATION VIOLATION SET FORTH IN POINT
II ABOVE. R. 3:23-8 WAS AMENDED TO PERMIT
SUCH SUPPLEMENTATION BY REMAND TO THE
MUNICIPAL COURT, A REMEDIAL DEVICE NOT
ACKNOWLEDGED BY THIS JUDGE.
II.
Defendant argues a message sent on Twitter should not have
been admitted as it was not properly authenticated.1
1
"Twitter is self-described as 'an information network made up
of 140-character messages called Tweets.'" State ex rel. J.F.,
446 N.J. Super. 39, 44 n.7 (App. Div. 2016) (citation omitted);
accord The Twitter Glossary, Twitter, Inc.,
https://support.twitter.com/articles/166337# (last visited Dec.
13, 2016) (hereinafter Glossary). "These messages are posted to
your profile, sent to your followers, and are searchable on
Twitter search." New User FAQs, Twitter, Inc.,
(continued)
6 A-5741-14T3
"[C]onsiderable latitude is afforded a trial court in
determining whether to admit evidence, and that determination
will be reversed only if it constitutes an abuse of discretion."
State v. Kuropchak, 221 N.J. 368, 385–86 (2015) (citation
omitted). "Under that standard, an appellate court should not
substitute its own judgment for that of the trial court, unless
'the trial court's ruling "was so wide of the mark that a
manifest denial of justice resulted."'" Ibid. (citation
omitted). We must hew to our standard of review.
The municipal court and the Law Division each admitted as
Exhibit S-4 the following tweet allegedly posted by defendant on
December 28, 2012: "No need for me to keep responding to ya
stupid unhappy fake mole having ass.. how u cring2 in a corner
with a shoe to ya face bitch." The tweet displayed defendant's
profile photo and defendant's Twitter handle, "@cirocgirl25."3
(continued)
https://support.twitter.com/articles/13920# (last visited Dec.
6, 2016).
2
Edwards interpreted "cring" as "crying." Defendant read
"cring" as "cringe."
3
A Twitter "'handle' is used to identify a particular user on
Twitter and is formed by placing the @ symbol next to a
username." Roca Labs, Inc. v. Consumer Op. Corp., 140 F. Supp.
3d 1311, 1319 n.4 (M.D. Fla. 2015). A Twitter "username is how
you're identified on Twitter, and is always preceded immediately
by the @ symbol." Glossary. A Twitter "header photo" is
"[y]our personal image that you upload, which appears at the top
(continued)
7 A-5741-14T3
Edwards testified she recognized the tweet as being written
by defendant because it displayed defendant's picture. She also
was familiar with defendant's Twitter handle, "@cirocgirl25."
Moreover, Edwards testified the tweet was posted "in response to
things that [Edwards] was saying" and they were communicating
"back and forth." On December 28, 2012, Edwards went onto
defendant's Twitter page, saw the posted tweet, and captured it
as a screenshot.4
Defendant testified the Twitter page displayed a picture of
her and her Twitter handle. However, she testified she did not
author the tweet.
When the State sought to admit the tweet, defense counsel
objected, arguing "[t]here's no way anybody besides Twitter can
say that this came from [defendant]." In admitting the tweet,
the municipal court ruled nothing "requires somebody to be here
from Twitter. I think somebody can testify as to it as Ms.
Edwards [did] and we go from there."
At the trial de novo, the Law Division classified the
methods of authenticating a social media post into two camps:
(continued)
of your profile." Ibid. This "profile photo" "appears next to
each of your Tweets." Ibid.4
"A 'screenshot' is a snapshot image of the information
displayed on a computer screen at a given point in time." State
v. Ravi, 447 N.J. Super. 261, 270 n.8 (App. Div. 2016).
8 A-5741-14T3
the Maryland approach and the Texas approach, respectively
citing Griffin v. State, 19 A.3d 415 (Md. 2010), and Tienda v.
State, 358 S.W.3d 633 (Tex. Crim. App. 2012).
In Griffin, the Maryland Court of Appeals considered what
the test should be for the authentication of printed pages of a
MySpace profile. Griffin, supra, 19 A.3d at 416-17. Citing
"[t]he potential for abuse and manipulation of a social
networking site by someone other than its purported creator
and/or user," Griffin ruled that images from such a site require
"greater scrutiny" than "letters and other paper records." Id.
at 423-24 (concluding that "a printout of an image from such a
site requires a greater degree of authentication"). The court
suggested three possible methods of authentication. Id. at 427.
The first method was "to ask the purported creator if she
indeed created the profile and also if she added the posting in
question, i.e. '[t]estimony of a witness with knowledge that the
offered evidence is what it is claimed to be.'" Ibid. (citation
omitted). The second method was "to search the computer of the
person who allegedly created the profile and posting and examine
the computer's internet history and hard drive to determine
whether that computer was used to originate the social
networking profile and posting in question." Ibid. The third
method was "to obtain information directly from the social
9 A-5741-14T3
networking website that links the establishment of the profile
to the person who allegedly created it and also links the
posting sought to be introduced to the person who initiated it."
Id. at 428.
In Tienda, the Texas Court of Criminal Appeals did not
employ any of the three Griffin methods but concluded "there are
far more circumstantial indicia of authenticity in this case
than in Griffin – enough, we think, to support a prima facie
case that would justify admitting the evidence and submitting
the ultimate question of authenticity to the jury." Tienda,
supra, 358 S.W.3d at 647. The Texas court found "the internal
content of . . . [the] MySpace postings – photographs, comments,
and music – was sufficient circumstantial evidence to establish
a prima facie case such that a reasonable juror could have found
that they were created and maintained by" a particular
individual. Id. at 642.
Here, the Law Division found "[t]he Maryland approach is
too strict in its authentication requirements," stating that its
three methods "are unrealistic for a party to fulfill" and
"create a higher bar than originally intended by the Rules."
Accordingly, the Law Division "chose[] to adopt a rule of
admissibility more similar to the Texas approach."
10 A-5741-14T3
Defendant argues that Texas follows the Maryland approach
and that we should adopt the Maryland approach with its "three
non-exclusive methods" of authentication. Id. at 647. We
reject any suggestion that the three methods of authentication
suggested in Griffin are the only methods of authenticating
social media posts. We also reject Griffin's suggestion that
courts should apply greater scrutiny when authenticating
information from social networks. See Parker v. State, 85 A.3d
682, 686-87 (Del. 2014) (rejecting the Griffin "greater
scrutiny" approach and "conclud[ing] that social media evidence
should be subject to the same authentication requirements under
the Delaware Rules of Evidence Rule 901(b) as any other
evidence"); see also United States v. Vayner, 769 F.3d 125, 131
n.5 (2d Cir. 2014) (noting that Griffin requires "greater
scrutiny" and stating "we are skeptical that such scrutiny is
required").
Rather, we agree with Tienda's observation that
[c]ourts and legal commentators have reached
a virtual consensus that, although rapidly
developing electronic communications
technology often presents new and protean
issues with respect to the admissibility of
electronically generated, transmitted and/or
stored information, including information
found on social networking web sites, the
rules of evidence already in place for
determining authenticity are at least
generally "adequate to the task."
11 A-5741-14T3
[Tienda, supra, 358 S.W.3d at 638–39
(citation omitted).]
Indeed, "jurisdictions across the country have recognized that
electronic evidence may be authenticated in a number of
different ways consistent with Federal Rule 901 and its various
state analogs." Id. at 639.
"Despite the seeming novelty of social network-generated
documents, courts have applied the existing concepts of
authentication under Federal Rule 901 to them," including "the
reply letter doctrine [and] content known only to the
participants." 2 McCormick on Evidence § 227, at 108 (Broun
ed., 2013).5 N.J.R.E. 901 "generally follows Fed. R. Evid. 901"
and incorporates both of those methods for authentication.
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence
[Biunno], 1991 Supreme Court Committee Comment & comment 3 on
N.J.R.E. 901 (2016).
We need not create a new test for social media postings.
Defendant argues a tweet can be easily forged, but so can a
letter or any other kind of writing. The simple fact that a
tweet is created on the Internet does not set it apart from
5
McCormick notes that Griffin "imposed a heavier burden of
authentication," but "[a]s with the advent of the telegraph, the
computer, and the internet," "the perceived need for this
additional burden may dissipate." McCormick on Evidence, supra,
§ 227, at 109-10.
12 A-5741-14T3
other writings. Accordingly, we apply our traditional rules of
authentication under N.J.R.E. 901.
Though in "electronic" form, a tweet is a "writing." See
N.J.R.E. 801(e). "The requirement of authentication of writings
. . . and the recognized modes of proving genuineness have been
developed by case law over two centuries." Biunno, supra,
comment 1 on N.J.R.E. 901 (2016). "Over the years
authentication requirements have become more flexible, perhaps
because the technology has become more commonplace." Suanez v.
Egeland, 330 N.J. Super. 190, 195 (App. Div. 2000).
N.J.R.E. 901 provides: "The requirement of authentication
or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter is what its proponent claims." Authentication "'does not
require absolute certainty or conclusive proof' – only 'a prima
facie showing of authenticity' is required." State v. Tormasi,
443 N.J. Super. 146, 155 (App. Div. 2015) (quoting State v.
Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162
N.J. 132 (1999)). "This burden was not designed to be onerous."
State v. Hockett, 443 N.J. Super. 605, 613 (App. Div. 2016).
"'Courts are inclined to assess their role in
authentication as that of a screening process[,]' and 'will
admit as genuine writings which have been proved prima facie
13 A-5741-14T3
genuine . . . leaving to the jury more intense review of the
documents.'" Konop v. Rosen, 425 N.J. Super. 391, 411 (App.
Div. 2012) (quoting Biunno, supra, comment 1 on N.J.R.E. 901
(2011)). In a bench trial, as here, "considering the judge's
dual role with regard to its admission and weight, the better
practice in such a circumstance will often warrant the admission
of the document and then a consideration by the judge, as
factfinder." Tormasi, supra, 443 N.J. Super. at 156–57.
Authenticity can be established by direct proof – such as
testimony by the author admitting authenticity – but direct
proof is not required. Biunno, supra, comment 2 on N.J.R.E. 901
(2016); N.J.R.E. 903. "A prima facie showing may be made
circumstantially." Konop, supra, 425 N.J. Super. at 411. "Such
circumstantial proof may include demonstrating that the
statement 'divulged intimate knowledge of information which one
would expect only the person alleged to have been the writer or
participant to have.'" Ibid. (quoting Biunno, supra, comment
3(b) on N.J.R.E. 901 (2011)). Here, the tweet contained several
such details, including "shoe to ya face," information that one
would expect only a participant in the incident to have.6
6
In Konop, we cited with approval Kalola v. Eisenberg, 344 N.J.
Super. 198, 200 (Law Div. 2001), which found a threatening phone
call to the plaintiff dentist authenticated because the caller
"identified himself as the defendant, referenced the plaintiff
(continued)
14 A-5741-14T3
Additionally, under the reply doctrine, a writing "may be
authenticated by circumstantial evidence establishing that it
was sent in reply to a previous communication." Mays, supra,
321 N.J. Super. at 629; see Biunno, supra, comment 3(c) on
N.J.R.E. 901 (2016). Here, Edwards testified that the tweet was
posted in response to her communications with defendant, as part
of a "back and forth" between them. Moreover, the tweet said
there was "[n]o need for me to keep responding to ya,"
apparently referring to Edwards who received a "shoe to ya
face."
Defendant's Twitter handle, her profile photo, the content
of the tweet, its nature as a reply, and the testimony presented
at trial was sufficient to meet the low burden imposed by our
authentication rules. Those facts established a prima facie
case "sufficient to support a finding that the matter is what
its proponent claims." N.J.R.E. 901. Other courts have
admitted tweets applying their similar authentication standard.
See Wilson v. State, 30 N.E.3d 1264, 1267-69 (Ind. Ct. App.
2015); Sublet v. State, 113 A.3d 695, 720-21 (Md. 2015); see
also 5 Weinstein's Federal Evidence: Discovering and Admitting
(continued)
and described the dental work previously performed." Konop,
supra, 425 N.J. Super. at 411-13.
15 A-5741-14T3
Computer-Based Evidence § 900.07[4A] (Joseph M. McLaughlin ed.,
2016).
Defendant argues the Law Division cited not only the
State's evidence but also defendant's testimony in the municipal
court that the tweet bore her picture associated with her
Twitter account. However, she cites no authority precluding the
Law Division from considering the uncontested fact that the
tweet bore defendant's photo and Twitter handle, which was
established through the testimony of Edwards as well as
defendant.
In the municipal court, defendant testified "[a]nybody can
make a fake Twitter page and put your name on it and put
something on there." She testified that because she deleted her
Twitter account months before, someone could have taken the same
Twitter handle and used it. After the municipal court did not
credit this claim, defendant tried to bolster her testimony by
submitting new evidence to the Law Division, including printouts
of Twitter policies showing that Twitter "is currently unable to
accommodate individual requests for inactive or suspended
usernames." The Law Division cited that policy as one of
several reasons for finding that defendant's testimony was not
credible and that she "did not actually delete her Twitter
16 A-5741-14T3
account and that she did, in fact, author and publish the Tweet
in question."
Defendant now argues it was improper for the Law Division
to rely on evidence that was not before the municipal court.
Notably, defendant herself presented the Twitter policies to the
Law Division and did not object to the court's consideration of
them. Therefore, she must show at least plain error. However,
she fails to show the court's consideration of the policies was
"clearly capable of producing an unjust result." R. 2:10-2.
There was ample other evidence supporting the court's decision
not to credit defendant's denial that she wrote and posted the
tweet.
The Law Division, like the municipal court, provided
sufficient reasons for finding the tweet authentic, relevant,
and admissible. Defendant's remaining arguments regarding
authentication lack sufficient merit to warrant discussion. R.
2:11-3(e)(2). Accordingly, we find no abuse of discretion in
admitting the tweet.
III.
The municipal court granted defendant's request for a
sequestration order at the start of trial. On appeal, defendant
argues for the first time that the order was violated when the
17 A-5741-14T3
State's witnesses were allowed to remain in the courtroom after
testifying.
N.J.R.E. 615 provides that, "[a]t the request of a party or
on the court's own motion, the court may, in accordance with
law, enter an order sequestering witnesses." "Its purpose is
'to prevent prospective witnesses from hearing what the other
witnesses detail in their evidence[.]'" State v. Williams, 404
N.J. Super. 147, 160 (App. Div. 2008) (emphasis added) (quoting
State v. Di Modica, 40 N.J. 404, 413 (1963)), certif. denied,
201 N.J. 440 (2010); see also Loigman v. Twp. Comm., 185 N.J.
566, 586 (2006) ("Sequestration of witnesses serves the salutary
purpose of ensuring that a witness who is testifying not
influence a witness who is about to testify.").
Here, allowing the witnesses to remain in the courtroom
after they testified "was no violation of a sequestration order
or insult to the purpose of sequestration." Williams, supra,404 N.J. Super. at 160. Edwards was the first witness to be
examined by the State. After her testimony concluded, the
municipal court told Edwards she "could step down." Edwards
apparently remained in the courtroom without objection. Blake
then entered the courtroom, testified, and was allowed to remain
without objection. Neither Edwards nor Blake was recalled to
the stand.
18 A-5741-14T3
Defendant argues Blake was coached by Edwards. However,
the record contains no evidence of Edwards coaching Blake.
Accordingly, defendant cannot show plain error. See id. at 160-
65; see also id. at 172-73 (Fisher, J.A.D., concurring); R.
2:10-2.
IV.
Lastly, defendant argues the municipal court drew an
adverse inference against her because she did not call the women
who were with her at the party to testify. The municipal court
stated: "I think the Court can draw some inferences from the
fact that there's reference to Ms. Hannah's sister [and two
other women] who [were] somewhere in the area . . . . And
they're not here to testify about anything." However, the Law
Division found that "the trial judge was not making an adverse
inference."
We need not review whether the municipal court did or could
draw such an inference because the Law Division itself declined
to draw such an inference. The Law Division stated: "Even if
this Court were to construe the trial judge's findings to
include an adverse inference, there is sufficient evidence in
the record to convict the defendant of simple assault without
the alleged adverse inference."
19 A-5741-14T3
The Law Division "conduct[ed] a trial de novo on the record
below." R. 3:23-8(a)(2). A trial de novo in the Law Division
"provides a reviewing court with the opportunity to consider the
matter anew." State v. Kashi, 180 N.J. 45, 48 (2004) (citation
omitted). "A trial de novo by definition requires the trier to
make his own findings of fact." State v. Kashi, 360 N.J. Super.
538, 545 (App. Div. 2003) (quoting Ross, supra, 189 N.J. Super.
at 75), aff’d, 180 N.J. 45 (2004). "[T]he Superior Court judge
reviews the transcript and makes an independent determination of
the sufficiency of the evidence presented." Ibid. Here,
"[n]othing precluded the Superior Court judge from making his
own assessment of the sufficiency of the evidence contained
within the record." Ibid. The Law Division did so without
making the inference allegedly drawn by the municipal court.
Thus, defendant's argument solely "challenge[s] the actions
of the municipal court judge. However, appellate review of a
municipal appeal to the Law Division is limited to 'the action
of the Law Division and not that of the municipal court.'"
State v. Palma, 219 N.J. 584, 591-92 (2014) (citations omitted).
"For that reason, we do not consider defendant's arguments in
respect of the municipal court judge's actions." Ibid.Affirmed.
20 A-5741-14T3