STATE OF NEW JERSEY v. MARK DIAMANTE

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4097-04T14097-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK A. DIAMANTE,

Defendant-Appellant.

____________________________________

 

Argued January 19, 2006 - Decided April 27, 2006

Before Judges Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Docket No. 5721.

John E. Hogan argued the cause for

appellant (Wilentz, Goldman & Spitzer,

attorneys; Mr. Hogan, of counsel and

on the brief).

Steven J. Kaflowitz, Assistant Prosecutor,

argued the cause for respondent (Theodore J.

Romankow, Union County Prosecutor, attorney;

Mr. Kaflowitz, of counsel and on the brief).

PER CURIAM

Defendant Mark Diamante was convicted of harassment, N.J.S.A. 2C:33-4a, in the Municipal Court of the Township of Clark. He was sentenced to pay a fine of $250 and court costs of $30 and ordered to perform ten days of community service. He was convicted again in a trial de novo in the Law Division, R. 3:23-8, and ordered to pay the same fines and penalties and perform the same amount of community service. The Law Division stayed the execution of the sentence pending defendant's appeal to this court.

Defendant now raises the following arguments in support of his appeal.

POINT I

THE PROSECUTION FAILED TO MEET ITS BURDEN OF PROVING TWO OF THE THREE ELEMENTS OF HARASSMENT; THEREFORE, SUFFICIENT CREDIBLE EVIDENCE WAS NOT PRESENT ON WHICH TO BASE A CONVICTION OF MR. DIAMANTE.

POINT II

MR. DIAMANTE'S CONSTITUTIONAL RIGHTS WERE VIOLATED BECAUSE HE DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS RIGHT TO COUNSEL BEFORE DEFENDING HIMSELF PRO SE.

We agree with defendant as to Point II. The record before us reveals that the municipal court judge did not advise defendant of his constitutional right to be represented by counsel, as required by R. 3:4-2(c) and R. 7:3-2(a). We are thus compelled to vacate defendant's conviction and remand this matter for a new trial. Because we are reversing on this error, we decline to address defendant's argument challenging his conviction based on a lack of sufficient credible evidence.

We gather the following facts based on the evidence presented at trial.

Defendant owns and operates a tree removal business in the Borough of South Plainfield. In June 2003, defendant was working in the Township of Clark, in the same area where William Mitchell resides. At one point, Mitchell approached defendant and requested an estimate on the cost of removing trees from his property. The two men had not had any prior contact or association before this impromptu encounter. After some discussion, they agreed upon a price, and defendant proceeded to remove the trees from Mitchell's property.

Although the original agreement only involved the removal of trees, Mitchell later asked defendant to remove a number of railroad ties located in the rear of his property. According to Mitchell, the final agreement required defendant to remove both trees and railroad ties for a total removal fee of $2,000. After the work was completed, Mitchell paid defendant $2,000 and, in turn, received a handwritten receipt stating "paid in full" from defendant. Thereafter, the parties did not have any further contact with each other for approximately one year.

On or about 10:00 a.m., on June 22, 2004, defendant appeared, without any prior notice, at the Mitchell residence in Clark. Mitchell's mother-in-law, Rose Marie Rigaerio ("Rigaerio"), answered the door. Defendant identified himself as the landscaper, and asked to speak to Mitchell. Rigaerio told defendant that Mitchell was at work, prompting defendant to ask Rigaerio if there was some way for her to contact Mitchell. Rigaerio called Mitchell on the house's cordless telephone. Once Mitchell answered, Rigaerio handed the phone to defendant. In his direct testimony, Mitchell gave the following account of what transpired next:

Okay. When I -- when I answered the phone, to my shocking surprise, I heard his voice, and he said, 'Hey, Billy. Do you remember who this is?' And I said, 'No, I do not.' And alarmingly, I see my number on the caller ID, and he says, 'It's Mark from Tree Max. Remember me?' And I said, 'Yeah, I remember you.' And he said, 'Remember those railroad ties I took from you a -- you know, over a -- a year ago, almost exactly a year ago?' I said, 'Yeah.' He goes, 'Well, you got three hours to give me a thousand dollars or they're getting all thrown back on your lawn.' And I said -- he go -- and he also mentioned, he goes, 'You remember that was a favor that I did for you to remove them.' I said, 'No, that is not the way I understood it. I understood it as we were -- it was fully paid for that -- for the entire removal and that the job was done.' I hadn't heard from him in exactly a year. I couldn't believe what I was hearing. To my astonishment -- I was very concerned for my family, because I thought he was in my house. So I immediately called the police, and two cars were dispatched and they sure enough identified him in front of my house, waiting there after the phone call. We ended the phone call with him giving me his cell phone number ironically, that I can call him on that within those three hours to not get those [railroad ties] put on my lawn.

Defendant's account of the tone and substance of the conversation differs only in some insignificant details. By way of example, in his direct testimony, defendant admitted: (1) going to Mitchell's home without any prior notice, after not having had any contact with him for a year; (2) asking to speak to Mitchell, after Rigaerio told him that Mitchell was at work; (3) telling Mitchell that he (defendant) was "facing a $1,200 disposal fee" in connection with the railroad ties; and (4) telling Mitchell that if he was not "interested" in paying him, he was going to put the railroad ties back on his "front lawn." Defendant also corroborated Mitchell's testimony that he was alarmed at hearing that defendant was at his home.

Against this factual backdrop, we will now address defendant's argument concerning his right to counsel.

On the day of trial, in response to the municipal judge's inquiry, defendant indicated that he was pleading not guilty. The case for the State was presented by the complaining witness's private counsel. As the private prosecutor was about to call his first witness, the municipal judge addressed defendant as follows:

THE COURT: Okay. Are you ready to proceed today, sir?

[DEFENDANT]: Me?

THE COURT: Yes.

[DEFENDANT]: Yes.

THE COURT: All right. Why don't you have a seat on -- Turn this chair right around, have a seat, pay attention, 'cause they go first.

The municipal judge did not address defendant on any other matter before the commencement of the State's case, which consisted of Mitchell's testimony, as the complaining witness, and the testimony of Rigaerio. In the course of Mitchell's direct testimony, the State offered into evidence a copy of a report Mitchell submitted to the Clark Police Department. When the private prosecutor showed defendant the proffered evidence, defendant asked the municipal court judge the following:

[DEFENDANT]: Your Honor, do I need to read the whole thing?"

THE COURT: Well, you're on trial, so if you ask me should you read it, what do you think?

The following exchange took place after defendant read the report:

THE COURT: Any objections, [defendant]?

[DEFENDANT]: It's not the truth, but I don't know if that -- I don't know what my rights are to say here.

THE COURT: You will. You'll get your chance. Other than that?

[DEFENDANT]: (No audible response)

Thereafter, the municipal court judge accepted the report into evidence. The private prosecutor asked the complaining witness whether the statement he made in the report was true, to which the witness responded, "Absolutely, yes." At the conclusion of the complaining witness's testimony, the municipal court judge addressed defendant as follows:

Mr. Diamante, this is your opportunity to cross examine Mr. Mitchell in connection with the testimony that he's just given to the Court. It's not your time to testify. Should you so desire, you'll be given that opportunity, but right now, if you want to ask Mr. Mitchell any questions, you may do so at this time.

The transcript of the proceedings reflects that defendant gave an inaudible response to the municipal court judge's question. Thereafter, defendant did not cross-examine the witness. The same thing occurred at the conclusion of the direct testimony given by Rigaerio, the second and final witness called by the State.

At the end of the State's case, the municipal court judge addressed defendant as follows:

Mr. Diamante, come on up here. Although you are a - Well, instead of although, you are a defendant in the -- a -- what they call a petty disorderly persons offense, you still retain the Fifth Amendment right to not testify and assert your privilege against self-incrimination. If it is your desire to testify, you obviously may do so. You need to be sworn in and then you're subject to cross-examination by [the private prosecutor] on behalf of the State. Do you understand that?

After responding that he understood these instructions, defendant testified in his own defense. The following exchange took place at the conclusion of defendant's testimony:

THE COURT: Mr. Diamante, do you have any other witnesses, sir?

[DEFENDANT]: My secretary's here.

THE COURT: You want to call her --

[DEFENDANT]: Would it be --

THE COURT: as a witness for you?

[DEFENDANT]: Well, --

THE COURT: Do you want her to testify?

[DEFENDANT]: Just really -- the only thing she could say is that --

THE COURT: Don't tell me what she can say. Do you want her to testify?

[DEFENDANT]: There's no reason for her to, unless you have any reason for -- to talk to her.

THE COURT: This is your -- this is your defense. It's not --

[DEFENDANT]: No, the -- his mother-in-law was honest, so there's no reason for her to -- She only witnessed that end of it. She can testify she was with me when the police came and everything, if that's of any help.

THE COURT: It's your case. It's your defense. I'm here to listen. You just tell me what you want to do.

[DEFENDANT]: Pretty straight forward. I mean -- I don't know.

THE COURT: Well, --

[DEFENDANT]: If you think it will be helpful to you --

THE COURT: when are you going to know? Now's the time to know one way or the other since we're here.

[DEFENDANT]: If what she['s] seen will be helpful, then I'll do it. If it's not, it doesn't --

THE COURT: I don't know whether it is. You know -- you should know what she's going to say more than what I know what she's going to say.

[DEFENDANT]: Do you doubt my testimony? Do you need support?

THE COURT: Mr. Diamante, it's very simple. Do you want her to testify or not?

[DEFENDANT]: I don't think there's any reason for it.

THE COURT: Okay. Do you have any other witnesses other than your secretary?

[DEFENDANT]: No.

THE COURT: So your case is closed.

[DEFENDANT]: I guess.

We begin our legal analysis by reaffirming the importance of the right to counsel in our adversarial system of justice. Both the federal and state constitutions guarantee criminal defendants the right to assistance of counsel. U.S. Const. amend. VI; N.J. Const. art. I, 10. In the seminal case of Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S. Ct. 792, 796-97, 9 L. Ed. 2d 799, 805-06, (1963), the Supreme Court of the United States deemed the right to counsel to be such an indispensable part of a fair trial that its violation can never be treated as harmless error. See also State v. McCloskey, 90 N.J. 18, 30 (1982).

In Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971), our Supreme Court established the right of some defendants accused of non-indictable offenses to representation by legal counsel. In so doing, the Court declared that

The importance of counsel in an accusatorial system such as ours is well recognized. If the matter has any complexities the untrained defendant is in no position to defend himself and, even where there are no complexities, his lack of legal representation may place him at a disadvantage. The practicalities may necessitate the omission of a universal rule for the assignment of counsel to all indigent defendants and such omission may be tolerable in the multitude of petty municipal court cases which do not result in actual imprisonment or in other serious consequence such as the substantial loss of driving privileges. But, as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.

[Ibid.]

In order to implement and otherwise give meaning to the right recognized in Rodriguez, the Supreme Court also promulgated rules requiring municipal court judges to inform defendants directly of their right to counsel:

At the defendant's first appearance, the judge shall inform the defendant of the charges and shall furnish the defendant with a copy of the complaint or copy of the electronic ATS/ACS record of the complaint, if not previously provided to the defendant. The judge shall also inform the defendant of the right to remain silent and that any statement made may be used against the defendant. The judge shall inform the defendant of the right to retain counsel or, if indigent, to have counsel assigned pursuant to paragraph (b) of this rule. The defendant shall be specifically asked whether legal representation is desired and defendant's response shall be recorded on the complaint. If the defendant is represented at the first appearance or then affirmatively states the intention to proceed without counsel, the court may, in its discretion, immediately arraign the defendant pursuant to R. 7:6-1.

[R. 7:3-2(a) (emphasis added).]

Rule 3:4-2(c) contains a similar notice requirement.

Here, there is no indication that the municipal court judge gave defendant the notice required under R. 7:3-2(a). As previously noted, the record is replete with instances showing the prejudice caused to defendant by his lack of legal representation. The State's case, which was based entirely on the testimony of two witnesses, was presented to the trier of fact without being subjected to the scrutiny of cross-examination. Without the assistance of competent counsel, defendant was relegated to something close to the status of a spectator at his own trial.

The municipal court judge's failure to comply with the notice requirements in R. 7:3-2(a) also deprived us of the opportunity to determine whether defendant validly waived his right to counsel. It is axiomatic that there can be no knowing, intelligent, and voluntary waiver of a right, when the record does not reflect that a fair and accurate recitation of that right was in fact given to its holder. New Jersey Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 266 (App. Div. 2002).

The State argues that because defendant was not facing a consequence of magnitude, the municipal court judge's failure to comply with the notice requirement in the Rules should have no legal consequence. We disagree.

As we made in clear in State v. VanRiper, 250 N.J. Super. 451, 456-57 (App. Div. 1991):

A non-indigent defendant "always has the right to retain counsel if he should so choose. . . ." State v. Carey, 230 N.J. Super. 402, 408 (App. Div. 1989). We are not concerned here with the right to assigned counsel. See Rodriguez v. Rosenblatt, 58 N.J. 281 (1971). We speak only of the right to retain an attorney. In that respect, [the applicable court rule], states clearly that "[e]very person charged with a non-indictable offense shall be advised by the court of his right to retain counsel. . . . See also State v. Carey, 230 N.J. Super. at 408. Moreover, at the commencement of each municipal court session, the judge must apprise all defendants of their right to retain an attorney.

Here, there is no question that defendant was not directly apprised of his right to counsel. As we noted in VanRiper, and as R. 7:14-1(a) makes clear, the general statement required prior to the commencement of the municipal court session is not a "substitute for the judge advising individual defendants of their rights prior to their respective hearings."

 
Reversed and remanded.

The record reflects that counsel submitted the certification required under R. 7:8-7(b). See State v. Storm, 141 N.J. 245, 255 (1995).

(continued)

(continued)

13

A-4097-04T1

April 27, 2006

 


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