STATE OF NEW JERSEY v. HELLANE T. FREEMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HELLANE T. FREEMAN,

Defendant-Appellant.

_____________________________________________________

July 28, 2015

Submitted May 5, 2015 Decided

Before Judges Ostrer and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-50-12.

Littler Mendelson, P.C., attorneys for appellant (Peter B. Ajalat, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hellane Freeman appeals from her September 19, 2012 conviction, following a trial de novo in the Law Division, for failing to signal when changing lanes, N.J.S.A. 39:4-126. After reviewing the record in light of the applicable law, we affirm.

The record reveals the following facts. Freeman received a motor vehicle citation for failure to signal when changing lanes on December 13, 2011 in Maywood. At the beginning of the May 9, 2012 municipal court proceedings, the municipal judge made an opening statement explaining the proceedings to the assembled litigants. In pertinent part, he explained

You have the following rights in court. You have the right to be advised of the charges against you. You may plead guilty or not guilty to the charges. You have a right to be represented by an attorney. You are presumed innocent until proven guilty beyond a reasonable doubt.

. . . .

You have a right to testify or not to testify on your own behalf. That's not to dissuade you from testifying. It's merely meant to inform you [that] you have a constitutional right not to give any testimony against your own interest. You have a right to a reasonable postponement of your case in order to consult with an attorney or prepare your case for trial. You have a right to subpoena or call witnesses to testify on your behalf.

The judge also explained the right to cross-examine witnesses, make closing arguments, and appeal an unfavorable decision to the Law Division.

The judge then called the calendar and when he called Freeman's name, she pled not guilty. When the judge was ready for her case, he asked for her plea again

The Court: Okay. Ms. Freeman, come on up.

Ms. Freeman, you're charged in Summons No. 84357 which alleges that on December 13th, 2011, on Route 17 northbound at 1:20 p.m. you were operating a 2000 Mini Cooper, two-door, red in color, license WDB-29R, New Jersey, and you failed to signal in violation of [N.J.S.A.] 39:4-126. How are you pleading?

Freeman: Not guilty.

. . . .

Court: [] I'm only interest[ed] in your plea. Okay? If you wish to defend this, and you want a trial - -

Freeman: That's what this was supposed to be today. I'm here for trial.

Court: You're here for trial. You can have a seat, and we'll call you when it's your turn.

. . . .

Prosecutor: I'm ready to go, Judge.

Court: Okay. You're ready, Ms. Freeman?

Freeman: Yes.

Maywood police officer William Phayre testified that he was sitting in a parking lot on December 13, 2011, when he saw Freeman driving on Essex Street. He observed her car change lanes several times in heavy traffic without signaling, causing several cars to brake to avoid her vehicle. Phayre followed the vehicle, and eventually pulled over Freeman and cited her for failure to signal a lane change. Freeman exercised her right to cross-examine the officer.

After Phayre testified, Freeman testified in her defense. She related that she was familiar with the area because she formerly was an open space planner for the county and now worked for a large corporation and this was her sales territory. She admitted that she changed lanes at least twice on Essex Avenue. She stated that she had turned on the electronic signal to indicate a turn and had not realized that the signal was not working. She explained that her car had been in an accident about three weeks before Phayre stopped her and that she was on her way to an auto dealer to get it repaired. In response to questioning, Freeman acknowledged that after the accident she did not check to see if the signal was still working.

Additionally, she attempted to introduce a police report, which was not certified, concerning the previous accident, as well as a document from a car dealership concerning the repairs to her car on the date of the incident. The judge sustained hearsay objections to both of these documents, and denied Freeman's request for an adjournment to obtain a certified police report and a witness from the dealership. During a colloquy with the judge, Freeman stated that she was proceeding without counsel because she could not afford an attorney.

At the conclusion of trial, the court found Freeman was guilty of the charge and sentenced her to $156 in fines and $33 in court costs. After her conviction, Freeman appealed to the Superior Court.

At the Law Division trial de novo, where she had counsel, Freeman argued that the conviction should be reversed because the court did not adequately explain her right to counsel and she did not knowingly waive that right. Counsel submitted that the transcript did not demonstrate whether Freeman heard the opening statement as she might have been late for court that day. Counsel did not concede that the opening statement was sufficient to apprise Freeman of her right to counsel, but rather argued that without proof that she heard the opening statement, there was no way she could have made a knowing and voluntary waiver.

The Law Division judge found that the municipal judge adequately advised Freeman that she had a right to counsel, and could get an adjournment to consult with one. The judge rejected the argument that the general opening statement, which he noted occurred in many municipal courts in order to apprise defendants of their rights, was a prohibited method of informing defendants of their rights. Further, the judge found that Freeman clearly waived her right to counsel as when asked if she wanted to proceed after the opening statement, Freeman said directly she was ready to go forward that day and wanted to go to trial. The judge then found Freeman guilty of the charge and imposed the same sentence as the municipal judge. This appeal followed.

On appeal, Freeman makes the following argument

THE MUNICIPAL TRIAL COURT FAILED TO PROVIDE DEFENDANT WITH THE APPROPRIATE INSTRUCTIONS ABOUT HER RIGHT TO COUNSEL IN VIOLATION OF THE NEW JERSEY COURT RULES.

Specifically, Freeman argued that the municipal court did not inform her of her rights as required by Rule 7:3-2, including her right to counsel, her right to remain silent, her right to appointed counsel, and her right to proceed without counsel. Additionally, Freeman argues that her consent to waive these rights was not obtained in accord with Rule 7:8-10. In her reply brief, despite the State providing a copy of the transcript of the judge's opening statement, Freeman maintained that the judge did not inform her of her right to remain silent, that anything she said may be used against her, her right to assigned counsel if she is indigent, and her right to proceed without counsel.1 We are not persuaded.

We begin with a review of the legal principles that guide our analysis. In an appeal from a de novo hearing on the record, our role is to consider the action taken in the Law Division, not the action of the municipal court. State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 2011) (citing State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)), certif. denied, 209 N.J. 430 (2012). The Law Division, on the other hand, must consider the evidence de novo but give due regard to the municipal judge's determinations on credibility findings in making its decision. Id. at 176 (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). We are ordinarily limited to determining whether the Law Division's findings were supported by sufficient credible evidence in the record. Ibid. (quoting Johnson, supra, 42 N.J. at 162). However, where the issues turn on purely legal issues, our review is plenary. Ibid. (citations omitted). Overall, we remain mindful that when the municipal court and the Superior Court enter "'concurrent judgments on purely factual issues,'" those findings should not be disturbed, "'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).

During a defendant's first appearance at municipal court, the judge must inform him or her of certain information, including the charges the defendant faces, the range of penal consequences, the right to remain silent, and the right to retain counsel or be assigned counsel if facing a consequence of magnitude. R. 7:3-2(a). Additionally, the court is to ask a defendant if he or she wishes to have counsel. Ibid. Indigent defendants are entitled to assigned counsel only if they face a "consequence of magnitude" or they are "otherwise constitutionally or by law entitled to counsel." R. 7:3-2(b). The guidelines adopted to effectuate this rule define a "consequence of magnitude" in pertinent part as "(1) [a]ny sentence of imprisonment;" (2) any period of a driver's license suspension, or driver's license ineligibility; or (3) "[a]ny monetary sanction imposed by the court of $7502 or greater in the aggregate . . . ." Pressler & Verniero, Current N.J. Court Rules, Guidelines for Determination of Consequence of Magnitude (See Rule 7:3-2) (2013) (hereinafter Guidelines).

Further, in any non-parking case

a request by a defendant to proceed to trial without an attorney shall not be granted until the judge is satisfied from an inquiry on the record that the defendant has knowingly and voluntarily waived the right to counsel following an explanation by the judge of the range of penal consequences and an advisement that the defendant may have defenses and that there are dangers and disadvantages inherent in defending oneself.

[R. 7:8-10.]

In the present case, there is no dispute that Freeman did not face a "consequence of magnitude," because she faced only a fine below the qualifying threshold. See Guidelines. Even so, failure to advise a defendant of his or her right to counsel, even when the defendant does not face a "consequence of magnitude" is error. See State v. Vanriper, 250 N.J. Super. 451, 456-57 (App. Div. 1991).

Here we are satisfied that the opening statement given by the municipal court judge adequately covered the requirements in in Rule 7:3-2 to inform Freeman of her right to counsel. Contrary to her claims, the record shows the judge did inform Freeman that she had a right to counsel, a right to testify or not, and a right for a postponement to consult with an attorney. The record shows that Freeman was present immediately after the judge finished his opening remarks and called the calendar. Nothing in the record suggests that she was not present for the opening remarks. Indeed, she told the judge during the trial that she decided to proceed by herself because she could not afford an attorney.

We recognize that the municipal court did not fully comply with the mandate of Rule 7:8-10. The municipal court did not explain the "range of penal consequences" associated with the violation charged, nor did the municipal court advise defendant that she "may have defenses and that there are dangers and disadvantages inherent in defending oneself." However, the municipal court's non-compliance does not compel reversal. As previously mentioned, Freeman was not entitled to appointed counsel as she was not facing a consequence of magnitude. She also stated that she could not afford an attorney. Consequently, even if the municipal court had fully complied with the Rule, defendant would have waived her right to counsel and proceeded to trial. We therefore conclude the Law Division did not err in finding defendant guilty in the trial de novo, as the municipal court's error did not produce an unjust result. See R. 2:10-2. Furthermore, we are convinced that the Law Division judge's decision is amply supported by credible evidence in the record. See Johnson, supra, 42 N.J. at 162.

1 Freeman also raised for the first time in the reply brief that the court erred in not granting her request for an adjournment in order to get a certified copy of the police report and bring in a witness to confirm that she had the car repaired the day she received the ticket. "It is improper to raise an argument for the first time in a reply brief. Typically, such an argument will not be recognized." A.D. v. Morris Cnty. Bd. of Social Servs., 353 N.J. Super. 26, 30 (App. Div. 2002).

2 This number has since been amended to $800. Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII: Guidelines for Determination of Consequence of Magnitude (See Rule 7:3-2) (2015).