STATE OF NEW JERSEY v. KENDRA BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1500-04T51500-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENDRA BROWN,

Defendant-Appellant.

____________________________

 

Submitted September 27, 2005 - Decided

Before Judges Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. 04-043.

Patricia Weston Rivera, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Kendra Brown, was convicted in municipal court for the offense of criminal mischief, N.J.S.A. 2C:17-3, a disorderly persons offense. She was fined $250 plus $155 in associated costs and penalties. Upon de novo review in the Law Division, she was likewise convicted, and the same fines and penalties were imposed. On this appeal, defendant raises the following issues:

POINT I: THE MUNICIPAL COURT DENIED THE DEFENDANT PROCEDURAL DUE PROCESS BY FAILING TO PROVIDE HER A FIRST APPEARANCE PURSUANT TO R. 7:3-2.

POINT II: THE MUNICIPAL COURT WAS REQUIRED BY R. 7:6-1(a) TO ARRAIGN DEFENDANT [AND] PROVIDE HER NOTICE OF THE CRIMINAL CHARGES AGAINST HER.

POINT III: THE TRIAL COURT DID NOT CONDUCT AN ADEQUATE DE NOVO HEARING.

POINT IV: THE DEFENDANT DID NOT WAIVE HER RIGHT TO CHALLENGE THE TRIAL ERRORS OF CONSTITUTIONAL MAGNITUDE BY THE FILING OF A DE NOVO APPEAL.

After reviewing the record from both the municipal court and Law Division proceedings, we conclude that these contentions are without merit.

Based on a complaint by her former boyfriend, Eugene Dawson, alleging that defendant damaged his automobiles, a municipal summons was issued to defendant for criminal mischief. When she failed to appear for the first scheduled court appearance in October 2003, a bench warrant was issued. Defendant did appear for a rescheduled hearing on January 14, 2004. Prior to the trial, the municipal court judge ascertained from defendant that she was pleading not guilty and then asked her if she was "ready to proceed today or do you want to consult with an attorney?" Defendant replied "No, I'm ready." The trial was held later that same day.

At the trial, Eugene Dawson and his wife testified that on September 17, 2003, three of their family vehicles had been vandalized. The tires were slashed and the vehicles had been "keyed." Dawson testified that he had broken off an affair with defendant some time before the incident and that she had been relentlessly pursuing him to try to rekindle the relationship by telephoning him, waiting for him in the parking lot at his workplace, and leaving a note on his car window asking to see him. Dawson's wife also testified that on the night of the incident, she saw defendant "walk around both cars with a [sic] object. I couldn't tell if it was a knife or box cutter." She confronted defendant outside the house and "asked her what she was doing there." Defendant responded that "I didn't come by to see you. I came by to see your husband." Mrs. Dawson also testified that the word "Bitch" had been written on all three cars.

After the Dawsons' testimony, the court advised defendant of her "absolute right not to testify." Defendant chose to testify and presented, in her defense, both a tape recording of a telephone conversation with Mrs. Dawson and a police report of an automobile accident in which she claimed she was injured. She claimed that on the night the cars were damaged, she was at her mother's house recuperating from injuries she sustained in the accident. However, she did not bring her mother to testify, because, as she stated, "See, I don't want her coming." According to the written opinion of the municipal judge, defendant also "offered a document which recorded the administration of a MRI test." The municipal judge found the complainant's witnesses credible and found defendant guilty.

In the de novo proceeding in the Law Division, defendant contended that she "didn't know there was suppose [sic] to be a trial. I never was noticed." She claimed she did not know what the charges were and was unable to bring witnesses to the trial. She also contended that she was not properly advised of her right to counsel. The Law Division judge rejected defendant's contentions:

I find that you were provided due process. You did not ask for an adjournment in order to get people. You did not explain to the court that there was any problem in you getting notice . . . there was no request for discovery. There was no request for adjournment for discovery. The photographs [of the damaged cars] were made available. The note you already admitted you recognize.

The Law Division judge concluded that defendant waived her right to counsel in municipal court. She also did not credit defendant's claim that her lack of representation was due to insufficient advice from the municipal court, because defendant was still representing herself in the Law Division.

We need not address defendant's claims that she was not given a first appearance or an arraignment pursuant to R. 7:3-2 and R. 7:6-1(a), because she did not raise those issues in the Law Division. However, we have recited the details of the municipal and Law Division proceedings at some length because it is evident to us that, contrary to defendant's contentions, she was well aware of the charges against her and was fully prepared to meet them on the day of the trial. She not only testified, but she brought documentary evidence and was prepared with an explanation as to why her mother was not there to testify. Although the municipal court proceedings could have been conducted with greater formality, defendant was not prejudiced by the lack of a formal arraignment or first appearance.

We also reject defendant's claims concerning the right to counsel. First, since she was not facing imprisonment or other consequence of magnitude, defendant did not have a constitutional right to have counsel assigned to her. See Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971). Second, she was given the opportunity to have the matter adjourned so that she could obtain an attorney, and she waived the opportunity. She made that same choice in the Law Division. We find no basis in this record to conclude that defendant would have obtained an attorney for the municipal court trial if she had received more or different instructions from the municipal judge concerning her right to counsel.

Defendant's remaining contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

When she finally appeared in municipal court, defendant claimed that she had not received the complaint because it was sent to the wrong address. However, her brief acknowledges that she "received a municipal summons."

At the time of the municipal court trial, defendant was employed by the Middlesex County jail in the Investigations Unit. She has produced no evidence that she could not afford counsel.

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A-1500-04T5

October 7, 2005