STATE OF NEW JERSEY VS. DANIEL F. GONZALEZ, ESQ.(3-2016, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4864-15T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DANIEL F. GONZALEZ, ESQ.,
Defendant-Respondent.
_____________________________________
Argued September 26, 2017 - Decided October 18, 2017
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Municipal
Appeal No. 3-2016.
Brian D. Gillet, Deputy First Assistant
Prosecutor, argued the cause for appellant
(Andrew C. Carey, Middlesex County
Prosecutor, attorney; Mr. Gillet, of counsel
and on the brief).
Adam J. Elias argued the cause for
respondent (Forbes Law Offices, LLC,
attorney; George B. Forbes, of counsel and
on the brief).
PER CURIAM
The State appeals from the Law Division judge's July 1, 2016
order vacating and reversing the East Brunswick municipal court
judge's contempt conviction and imposition of a $1000 fine against
attorney Daniel F. Gonzalez pursuant to Rule 1:10-1 and N.J.S.A.
2A:10-1(b). The State argues that the Law Division judge: (1)
applied the wrong standard of review and failed to give due
deference to the credibility findings of the municipal court judge,
and (2) erred in finding the behavior of Gonzalez fell short of
the willful disobedience required for contempt. We disagree and
affirm.
The contempt conviction stemmed from Gonzalez's
representation of a bus driver in a driving while intoxicated
(DWI) case pending in the East Brunswick municipal court. On
October 22, 2015, Gonzalez served an expert report prepared by
Herbert Leckie of DWI Consultants. Leckie's report was central
to Gonzalez's defense of his client in the DWI case. One week
after service of Leckie's expert report, the municipal court's
staff communicated with Gonzalez's secretary to set a trial date.
The municipal court scheduled the DWI trial for December 10, 2015.
Two weeks after receiving the trial date, Gonzalez requested an
adjournment of the DWI trial because Leckie was unavailable on the
scheduled date. Gonzalez further claimed that his secretary had
not offered December 10 as a tentative trial date.
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The municipal court denied Gonzalez's request to adjourn the
DWI trial but agreed to conference the case on December 3, 2015.
Gonzalez did not appear before the municipal court judge on
December 3.
On the December 10 trial date, Gonzalez arrived one hour late
to the East Brunswick municipal court. Gonzalez explained that
he had a court appearance in Sayreville that morning and was unable
to find coverage for the Sayreville matter. Gonzalez again advised
the municipal court judge that his defense expert was unavailable
and asked the municipal court judge for a trial adjournment. The
municipal court judge denied the renewed adjournment request.
The municipal court judge then asked Gonzalez if he was ready
to try the case. Gonzalez responded that he was not ready to try
the DWI case because he did not anticipate denial of his
adjournment request. The municipal court judge gave Gonzalez the
option to try the DWI case on December 10 or face a contempt
finding. Gonzalez refused.
The municipal court judge then offered to have the State
proceed with its case on December 10, adjourning the defense case
so that Gonzalez would have an opportunity to order a transcript
of the State's trial testimony, have Leckie review the transcript,
and then return to municipal court to continue with the DWI trial
when Leckie was available. Gonzalez declined to move forward with
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the DWI trial on December 10. Gonzalez explained to the municipal
court judge that his client's livelihood depended on maintaining
his driver's license and that the defense expert had to be in
court during the State's case to assist Gonzalez with cross-
examination of the State's expert. Gonzalez argued that proceeding
with the DWI trial under the circumstances suggested by the
municipal court judge deprived the client of his Sixth Amendment
right to effective counsel.
The municipal court judge again gave Gonzalez the option to
try the DWI case that day or be held in contempt. Gonzalez
responded that in light of the confrontation between himself and
the court, the client no longer wanted to be represented by
Gonzalez in the DWI matter. Thus, Gonzalez advised the municipal
court judge that he would not try the DWI case on December 10.
The municipal court judge issued an oral decision holding
Gonzalez in contempt in the face of the court and imposing an
immediate $1000 fine. No order memorializing the municipal court
judge's ruling was entered that day. Gonzalez left the court
after the judge's ruling.
The next day, Gonzalez sent a letter to the court reiterating
the reasons for his adjournment request and requesting a new trial
date when his expert would be available. The municipal court's
staff instructed Gonzalez to appear before the municipal court
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judge by 4:30 p.m. on December 11. However, because Gonzalez was
arguing a motion in another court, he could not be reached and did
not appear as directed by the municipal court staff.
On December 17, 2015, the municipal court judge conducted a
supplemental hearing on the contempt charge. The municipal court
judge reiterated that the December 10 trial date was selected to
accommodate Gonzalez's expert. The municipal court judge also
noted that she had denied an adjournment request made by the State
to accommodate a State witness. The municipal court judge gave
Gonzalez an opportunity to be heard before announcing her final
decision.
Gonzalez repeated his belief that December 10 was never among
the dates available for his expert, and there must have been a
miscommunication between his staff and the court's staff. When
Gonzalez discovered that his DWI expert was unavailable on December
10, Gonzalez immediately requested an adjournment. Gonzalez noted
that his first adjournment request was made almost a month before
the trial. Gonzalez explained that he declined the option of
moving forward with the State's case on December 10 because he
needed his expert's participation to conduct an effective cross-
examination of the State's witnesses. Gonzalez stated that he
needed to protect his client's livelihood and represent his client
diligently.
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The municipal court judge confirmed that she was holding
Gonzalez in contempt and imposing a fine. The municipal court
judge issued a written order adjudicating Gonzalez guilty of
contempt in the presence of the court pursuant to Rule 1:10-1 and
imposing a $1000 fine. However, she stayed the fine pending
appeal.
On December 22, 2015, Gonzalez appealed the municipal court
judge's contempt finding, and the $1000 fine, to the Law Division,
where he argued that his behavior did not rise to the level of
contempt. He claimed the municipal court judge gave him a
"Hobson's choice" of either accepting a contempt charge or
compromising his client's Sixth Amendment right to effective
counsel by forcing him to try a case for which he was unprepared
due to his expert's unavailability.
Following oral argument on July 1, 2016, the Law Division
judge found that: (1) Gonzalez's behavior fell short of the willful
disobedience required for contempt; and (2) the amount of the fine
levied by the municipal court judge was excessive. The Law
Division judge determined that the municipal court judge
improperly forced Gonzalez to choose between accepting a contempt
charge and compromising his client's constitutional rights. The
Law Division judge noted that if Gonzalez had proceeded with the
DWI trial, "the client would have been convicted, and then we'd
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be back here again on an ineffective assistance of counsel
argument, because [Gonzalez] admitted he wasn't prepared."
The Law Division judge found there was no evidence in the
record that Gonzalez's behavior was habitual or in any way
disrespectful or offensive, and therefore, it did not meet the
mens rea requirement for a contempt conviction. The Law Division
judge also noted that the municipal court judge made no findings
as to the costs resulting from the delay and failed to identify
any discernible inconvenience to the municipal court, thus
rendering the $1000 fine "patently excessive and not rationally
related to any identifiable harm, losses, or prejudice to the
court." The Law Division judge entered an order vacating and
reversing Gonzalez's contempt conviction and accompanying fine.
In reviewing a judgment of the Law Division on a municipal
appeal we apply a sufficiency of the evidence standard. See State
v. Ugrovics, 410 N.J. Super. 482, 487—88 (App. Div. 2009), certif.
denied, 202 N.J. 346 (2010). We must "determine whether the
findings made could reasonably have been reached on sufficient
credible evidence present in the record." State v. Johnson, 42
N.J. 146, 162 (1964). "When the reviewing court is satisfied that
the findings and result meet this criterion, its task is complete
and it should not disturb the result . . . ." Ibid. An appellate
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court only evaluates the decision of the Law Division, not the
municipal court. Id. at 157.
Superior Court review of a municipal court conviction is
conducted de novo on the record, unless the record is
unintelligible or incomplete. R. 3:23-8; see also R. 2:10-4. If
the Superior Court finds the evidence in the record is insufficient
to support the conviction, it must issue an order of acquittal.
See State v. Sparks, 261 N.J. Super. 458, 462 (App. Div. 1993).
The Superior Court should defer to the municipal court‘s
credibility findings. State v. Locurto, 157 N.J. 463, 470-71
(1999) (citing Johnson, supra, 42 N.J. at 161-62). However, the
municipal court's "interpretation of the law and the legal
consequences that flow from established facts are not entitled to
any special deference." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). Thus, "[o]n a de novo review
on the record, the reviewing court . . . is obliged to make
independent findings of fact and conclusions of law, determining
defendant's guilt independently but for deference to the municipal
court's credibility findings." Pressler & Verniero, Current N.J.
Court Rules, comment 1.1 on R. 3:23-8 (2017).
N.J.S.A. 2A:10-1 defines contempt as, among other things:
"[m]isbehavior of any person in the actual presence of the court."
N.J.S.A. 2A:10-7 empowers municipal courts to adjudicate contempt.
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Rule 1:10-1, addressing summary contempt in the presence of
the court, states:
A judge conducting a judicial proceeding may
adjudicate contempt summarily without an order
to show cause if:
(a) the conduct has obstructed,
or if continued would obstruct,
the proceeding;
(b) the conduct occurred in the
actual presence of the judge, and
was actually seen or heard by the
judge;
(c) the character of the conduct
or its continuation after an
appropriate warning unmistakably
demonstrates its willfulness;
(d) immediate adjudication is
necessary to permit the proceeding
to continue in an orderly and
proper manner; and
(e) the judge has afforded the
alleged contemnor an immediate
opportunity to respond.
Contempt in the face of the court requires an "open threat
to the orderly procedure of the court and such a flagrant defiance
of the person and presence of the judge before the
public . . . [that if] not instantly suppressed and punished,
demoralization of the court's authority will follow." Cooke v.
United States, 267 U.S. 517, 536, 45 S. Ct. 390, 394-95, 69 L. Ed.
767, 773 (1925) (reversing summary contempt conviction against
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attorney for a letter he wrote to the court demanding recusal and
questioning the dignity of the court). Summary contempt under
Rule 1:10-1 is appropriate when an attorney openly mocks the court
during proceedings. See In re Daniels, 118 N.J. 51, 66-70 (1990),
cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333
(1990). Summary contempt is not appropriate when an attorney
"refuse[s] compliance with an order he or she believes invades a
constitutional right." In re Mandell, 250 N.J. Super. 125, 130-
32 (App. Div. 1991) (reversing contempt conviction against
attorney who refused to reveal whether her client would testify
in his criminal case).
Additionally, if an attorney provides an explanation for the
allegedly contemptuous conduct that is not "insulting, frivolous
or clearly inadequate," the court may not proceed with summary
contempt under Rule 1:10-1, but must submit the issue to a hearing
before a different judge under Rule 1:10-2. In re Lependorf, 212
N.J. Super. 284, 290 (App. Div. 1986) (reversing summary contempt
conviction where attorney failed to timely provide a witness list;
the attorney's excuse had a "semblance of adequacy" and thus
required adjudication by a different judge).
While the Law Division judge found that Gonzalez's behavior
"was less than ideal," he determined that Gonzalez lacked the
intent required for a contempt adjudication.
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There were no credibility determinations made by the
municipal court judge in this case. Therefore, the Law Division
judge was not required to accord any deference to the municipal
court judge's determinations. Nor was deference by the Law
Division judge required as to the municipal court judge's
interpretation of the law governing contempt proceedings. The Law
Division judge, on de novo review of the record, correctly made
independent findings of fact and conclusions of law as to
Gonzalez's guilt on the contempt issue.
We find the Law Division judge's conclusions to be
sufficiently supported by the record. The transcripts of the
December 10 and December 17, 2015 municipal court proceedings
reflect that Gonzalez was apologetic, respectful, and mindful of
the impact on the client if Gonzalez was forced to proceed with
the DWI trial. There is nothing in the record indicating that
Gonzalez raised his voice, used obscenities, insulted the
municipal court judge, or displayed inappropriate or disruptive
body language.
We also agree with the Law Division judge's determination
that Gonzalez's explanation for not proceeding with the DWI trial
was meritorious and his conduct in explaining his position was not
insulting or insolent. While Gonzalez was late to the December
10, 2015 court proceeding, he explained that his tardiness was due
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to another court appearance for which he could not find coverage.
See In re Lynch, 369 N.J. Super. 93, 100-102 (App. Div. 2004)
(reversing contempt conviction against attorney who failed to
appear in court due to a simultaneous meeting with the presiding
judge). Similarly, Gonzalez explained that his refusal to proceed
with the State's case on December 10 was based upon the need to
have his expert hear the testimony of the State's expert to conduct
a thorough cross examination of the State's witnesses. Gonzalez
also explained that he had given notice of his expert's scheduling
conflict a month before the trial date. Gonzalez also rationalized
that because his staff had multiple contacts with the municipal
court's staff until the week before the trial, he believed that
the requested adjournment would be granted. Gonzalez's proffered
excuses were not patently inadequate, and thus, did not merit a
summary contempt conviction under Rule 1:10-1. See In re
Lependorf, supra, 212 N.J. Super. 284.
Additionally, the Law Division judge's conclusion that
forcing Gonzalez to try the DWI case with counsel's acknowledgment
that he was unprepared would have impeded the client's
constitutional rights has ample legal support. See State v. Fritz,
105 N.J. 42, 63-64 (1987) (remanding for a determination of
ineffective assistance where the defense attorney failed to
adequately prepare for the case, noting that "[t]he exercise of
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utmost skill during the trial is not enough if counsel has
neglected the necessary investigation and preparation of the case"
(quoting Moore v. United States, 432 F.2d 730 (3d Cir. 1970))
(alteration in original).
For these reasons, we find that the Law Division judge's
order vacating the contempt determination and reversing the
imposition of the $1000 fine is supported by the record and is
consistent with the relevant law.
Affirmed.
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