STATE OF NEW JERSEY v. RUZNGPAT OCHAJAROEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0076-05T20076-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUZNGPAT OCHAJAROEN,

Defendant-Appellant.

_____________________________

 

Submitted April 25, 2006 - Decided June 27, 2006

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, MA-05-022.

Edward J. Kologi, Jr., attorney for appellant.

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Sara A. Friedman, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

On May 17, 2004, defendant was issued a summons for reckless driving, N.J.S.A. 39:4-96, in Glen Ridge. He appeared pro se in the Glen Ridge Municipal Court on June 25, 2004, and entered a plea of guilty to the charge. He appeared with counsel for sentencing on September 28, 2004. The municipal court judge denied his motion to retract the guilty plea and sentenced him to pay a fine of $500 as well as imposing a license suspension for six months and directing that he perform thirty hours of community service and serve thirty days in jail. The judge suspended the penal portion of the sentence on condition that defendant attend fifteen consecutive court sessions.

Defendant paid the fine but did not perform his community service or attend the court sessions as directed. He was summoned back to court on May 25, 2005, and the municipal court judge reimposed his original sentence of thirty days in jail while vacating the other conditions of the sentence.

The custodial sentence was stayed pending appeal to the Law Division. On May 23, 20005, the criminal case manager of the Essex County vicinage sent a notice acknowledging receipt of defendant's notice of appeal filed on April 11, 2005, stating that "the court requires a brief outlining the issues of the appeal being submitted to this office within 30 days of the date listed on this notice in order to perfect/complete your Municipal Appeal." On June 23, 2005, defendant filed his brief. Notice was given that the case had been assigned to a Law Division judge with a hearing scheduled for August 12, 2005 at 1:30 p.m. However, on July 21, 2005, the Law Division judge rendered an oral opinion holding the following:

Based on the transcript, the defendant in this matter was previously convicted of reckless driving in 2000 under N.J.S.A. 39:4-96. Defendant, in summary, argued that Judge Joseph T. Connolly abused his discretion by imposing a thirty day term of incarceration for a "glorified speeding offense." The New Jersey Supreme Court has held a conviction pursuant N.J.S.A. 39:4-96 may arise solely from an individual driving at a high rate of speed. State v. Willhite, 40 N.J. Super. 405. Accordingly, the Glen Ridge Municipal Court's decision to sentence Mr. Ochajaroen to a period of thirty days is hereby affirmed.

The Law Division judge entered an order stating that the matter was considered on the papers and affirming the sentence of thirty days incarceration. Defendant filed a notice of appeal to this court on September 6, 2005, and imposition of sentence was stayed pending our determination.

We reverse. As conceded by the State, R. 3:23-8(a) and (b) specifies that an appeal from a judgment of conviction in a court of limited jurisdiction "shall be heard" on the stenographic record below. Defendant was appealing as of right from a final judgment of conviction and the Law Division judge is required to hold a trial de novo on the record and determine the case anew. After giving due regard to the opportunity of the municipal court judge to assess credibility, the Law Division judge then must make independent findings of fact on the issue of guilt or innocence. Here the Law Division judge "affirmed" the sentence imposed by the municipal court as opposed to entering a judgment of conviction anew. This was error. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000).

Based on the failure of the Law Division judge to afford counsel the opportunity for oral argument as well as the failure to articulate findings of fact and conclusions of law, the Law Division order of July 21, 2005, is reversed. The matter is remanded to the presiding judge of the Criminal Part of Essex County for assignment of a different Law Division judge for a de novo review and determination on the record.

Reversed.

 

(continued)

(continued)

4

A-0076-05T2

June 27, 2006