Opinion
DOCKET NO. A-5525-09T3
06-29-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAWRENCE JENKINS, Defendant-Appellant.
PinilisHalpern, L.L.P., attorneys for appellant (Jeffrey S. Mandel, of counsel and on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Derek T. Nececkas, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Reisner.
On appeal from the Superior Court of New
Jersey, Law Division, Union County,
Municipal Appeal No. 5938.
PinilisHalpern, L.L.P., attorneys for
appellant (Jeffrey S. Mandel, of counsel
and on the brief).
Theodore J. Romankow, Union County
Prosecutor, attorney for respondent
(Derek T. Nececkas, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
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 IWe reverse the judgment entered in this matter.
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.)
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 Fils-Aime, 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, when the parties next appeared before the court on April 10, 2008, it was disclosed that Fils-Aime had retained new counsel, who sought to proceed with the matter. It was therefore adjourned.
The letter is not in the record on appeal and has allegedly been lost.
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. 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. 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 Fils-Aime's cheek, he determined to file a complaint for simple assault against Jenkins.
The statements were not introduced in evidence and are not in the record on appeal.
The photographs, which were authenticated and marked in evidence at the time of later testimony by Fils-Aime, are not in the record and have allegedly been lost.
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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 Fils-Aime 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 by counsel for Fils-Aime demonstrates that it was incomplete, in that he did not certify to the following:
2. The is no actual conflict of interest arising from my representation of, and fee arrangement with, the complaining witness. Check if correct. [ ] If not, please explain:
3. The municipal prosecutor has elected not to conduct the prosecution. Check if correct. [ ] If not, please explain:
6. There are no other facts that could reasonably affect the impartiality of the private prosecutor and the fairness of the proceedings or otherwise create an appearance of impropriety. Check of correct. [ ] If not, please explain:
Nonetheless, trial proceeded with each party being called as a witness in that party's case. Trial was continued on October 5, 2009, at which time George Byrd was called as a witness for Jenkins. On October 19, 2009, the court placed its findings of fact on the record, determining that Jenkins was the aggressor and that he was guilty of simple assault. The court therefore assessed a fine against Jenkins of $500, as well as court costs and statutory penalties. The court found Fils-Aime not guilty and dismissed Jenkins's complaint against him.
The judgment was appealed to the Superior Court for redetermination on the municipal court record, at which time the State appeared, and Jenkins represented himself pro se. No appearance was made on behalf of Fils-Aime. Following argument on the record, the court determined to disregard the testimony of Trooper Tanis, which it characterized as "pure hearsay" that had largely been ignored by the municipal court in reaching its decision. Then, employing the standard of review set forth in State v. Locurto, 157 N.J. 463, 474 (1999), it deferred to the municipal court's finding of credibility on the part of Fils-Aime and again found Jenkins guilty of simple assault, but declined to impose the $500 fine that had been assessed by the municipal court. This appeal followed.
On appeal, Jenkins, through newly-retained appellate counsel, argues that the failure to comply with the provisions of Rule 7:8-7(b) with respect to the use of private prosecutors is fatal to the claims against him under the precedent established by State v. Storm, 141 N.J. 245 (1995), recognizing the potential for conflicts of interest that may undermine the impartiality of the proceedings in private prosecutions, id. at 253-55, and State v. Valentine, 374 N.J. Super. 292, 297-98 (App. Div. 2005), declaring that, in the absence of compliance with Rule 7:8-7, a conviction resulting from a private prosecution cannot stand.
Significantly, the State, which is the only other party to appear on appeal, concedes that point. However, it argues that as the result of the municipal prosecutor's offer of the testimony of Trooper Tanis, the State was involved in a substantial portion of the trial. But, we note that the State rested after the Trooper's testimony was concluded, and we further note that the Superior Court found the Trooper's testimony to have constituted inadmissible hearsay, which the State also concedes in its brief to have been the case. Thus, the Superior Court effectively ruled that the State had failed to establish beyond a reasonable doubt the allegations of simple assault set forth in its complaint. At that point, the only complaints remaining were those of the parties, which were both privately prosecuted in a fashion that the State has conceded to have been improper.
The State argues additionally that if it had remained in the municipal prosecution, it "would have certainly" called Fils-Aime as a witness. However, that argument ignores the prosecutor's statement on the record that she was not going to call additional witnesses, and that the State rested. Accordingly, we find no legal basis upon which this conviction can be affirmed, and therefore reverse the judgment against defendant Jenkins.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION