STATE OF NEW JERSEY v. MARK H. PETHERBRIDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3934-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK H. PETHERBRIDGE,

Defendant-Appellant.

________________________________________________

April 6, 2011

Submitted February 2, 2011 Decided

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 107-08.

Robert N. Agre, attorney for appellant.

Robert D. Bernardi, Burlington County Prosecutor,attorney for respondent (Kathleen E. Dohn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Mark H. Petherbridge appeals from a Law Division judgment of conviction entered following a de novo review on the record of proceedings in the Southampton Township Municipal Court. The Law Division found defendant guilty of simple assault.1 Because it is unclear whether the Law Division reached that result on the basis of an independent assessment of the record or based on a misapprehension that it was bound to defer to the decision of the municipal court, we remand for clarification and, if warranted, for further proceedings.

The matter arises from an altercation between defendant and a former client of the farm where defendant works and lives. Defendant is the caretaker of the farm and husband to the owner. The former client, Robert Gross, boarded his horse, Jake, at the farm. Although clients pay the farm for boarding their horses, other services such as veterinary and farrier care are paid separately. In early December 2007, Gross had a heated discussion with the farm's horse trainer regarding Gross's nonpayment of bills. In this discussion, Gross yelled and screamed at the horse trainer. The trainer voiced her fear to defendant and his wife that Gross might harm her or damage the farm's property.

On March 12, 2008, defendant and his wife spoke with Gross's wife about the recurring late payment or nonpayment of bills for certain services relating to the care of Jake, specifically, that the veterinarian was refusing to tend to Jake until an outstanding bill for services was paid. During their conversation, defendant suggested that Jake might need to be put down if he did not receive the proper care. Mrs. Gross was offended. Upon hearing of the discussion between defendant and Mrs. Gross, Gross called defendant and yelled at him for confronting Mrs. Gross. Defendant testified that Gross threatened his life, and defendant was so disturbed by the phone conversation that he called the State police, who quickly arrived. Upon further reflection, defendant decided he did not want to "escalate" the situation. He asked the police at that time not to contact Gross concerning the incident. Instead, defendant personally spoke with Gross about his behavior, but to no avail. Gross became belligerent and was dismissive of defendant's request that he alter his behavior. As a result of that response, defendant testified that he told Gross he was no longer welcome on the farm property.

Gross disputed the assertion he was ever told that he was not welcome on the farm. On March 23, 2008, Easter Sunday, Gross and his daughter, T.V., arrived at the farm to tend to Jake. Gross remained in his truck while T.V. went to a portable restroom to change her clothes. According to Gross, defendant approached Gross's truck, banged on the window, cursed at Gross, and told him in offensive language to leave the farm.

The two men have differing accounts of what was said or who attacked whom, however, both agree that angry words were exchanged and a scuffle ensued. Gross claims defendant was brandishing a "cat's claw," a metal tool used to remove small nails, and he dove into Gross's truck, and started hitting him. According to Gross, defendant injured Gross's right index finger, lip and left elbow. By contrast, defendant claims that Gross jumped halfway through the open truck window, hit him first, and then when defendant pulled the cat's claw from his pocket to defend himself, Gross grabbed it and yanked defendant into the truck, striking him repeatedly. Both men testified that after defendant removed himself from the vehicle -- whether he dove in or was pulled in -- he backed away and walked to the barn or a nearby shed. Gross presumed defendant was going for a larger crow bar.

Gross then quickly put his daughter into the truck and drove across the street to get off the farm property. From there, he called 911. The police responded and arrested defendant.2

At the trial in municipal court, the judge did not find the defendant's version of the confrontation to be credible. The municipal court judge also rejected defendant's contention that he acted in self-defense and found defendant guilty of assault. The municipal judge stated:

I got to be honest, I just don't find that testimony [by defendant] to be credible. I don't believe that's how this incident happened. I think what happened is, there was a confrontation at the window and [defendant] for whatever reason reached in and struck [Gross] [Gross] had an injury on his -- the right side of his face consistent with being punched. There was blood in the vehicle.

There's also testimony that by -- by his own testimony [defendant] says that he interjected, and that was his word, into this situation between [Mrs. Gross] and his wife. He also admits that he called Gross a liar, a thief, and a drug dealer which is indicative of his state of mind at the time. I just don't believe [defendant's] version of what happened. I don't think physically it's possible to do what he claims happened. They obviously were both hot heads. Both confronted each other and I think [defendant] reached in and struck [Gross] as evidenced by his -- the injury to his face.

I don't find self-defense to be a reasonable argument here. You have somebody who's seated in a vehicle and someone who's standing outside the vehicle. Even if [Gross] was able to turn himself completely around and strike [defendant], [defendant] is outside the vehicle. He stepped back. There's no evidence that [Gross] ever tried to get out of the vehicle and strike him. I'm satisfied that -- that [defendant] did cause the assault.

Following his de novo review of the record, the Law Division judge also found defendant guilty of simple assault and imposed a fine, statutory penalties and court costs. On appeal, defendant argues that the Law Division erred by failing to apply the proper de novo standard of review and by considering itself bound by the municipal court's decision.

Rule 3:23-8(a) provides for a de novo review on the record when a municipal court conviction is appealed to the Law Division:

[T]he trial of the appeal shall be heard de novo on the record unless it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of defendant were prejudiced below in which event the court to which the appeal has been taken may either reverse and remand for a new trial or conduct a plenary trial de novo without a jury.

A "trial de novo by definition requires the trier to make his own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). See also State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000); State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). Because the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472 (1999). However, the Law Division judge "need . . . give only due, although not necessarily controlling regard to the opportunity of the municipal court judge to judge the credibility of the witnesses." Ross, supra, 189 N.J. Super. at 75. This is because the function of the Law Division is not governed "by the substantial evidence rule but rather [it engages in] an independent fact-finding function in respect of defendant's guilt or innocence." Ibid. (citing State v. States, 44 N.J. 285, 293 (1965); State v. Johnson, 42 N.J. 146, 157 (1964)).

By comparison, "when a defendant appeals from a judgment of [the Law Division] on an appeal from a municipal court, the appellate court will consider only the action of the [Law Division] and not that of the municipal court." State v. Joas, 34 N.J. 179, 184 (1961). Our review only asks whether there was sufficient credible evidence to uphold the decision of the Law Division. Johnson, supra, 42 N.J. at 162. Of course, the Law Division's legal interpretations are not afforded deference. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

Here, the Law Division judge appears to have surrendered his own independent view of the applicability of defendant's claim of self-defense and accorded controlling deference to the municipal court's view. The judge stated:

[W]hen you're in -- in an appeals authority, you have to -- I'm asked always to give deference because I was not there at trial, so I don't really know as to the credibility findings of the -- of the lower court. It is clear to me in my mind -- but I -- I'm not the Trial Judge -- that -- that there -- there could have been a reason for self defense here. It just looks that way to me. I -- I would -- I probably would have reached a different conclusion than the -- than the Trial Judge.

However, you know, I wasn't there. I can't, you know, say anything. He -- he does -- he does make it pretty clear, [defense counsel], to me, that he didn't find Mr. -- your client's testimony to be credible as it relates to this, as -- as it's been pointed out by [the State], which means I'm going to have to affirm his decision. But I do think that there -- there could have been some other basis that maybe would not have established beyond a reasonable doubt here. . . . It's -- his finding is clear, you know, and I have to give deference to that.

The State argues the case is "hinged upon the credibility of the witnesses," and that the Law Division merely recognized that the municipal court judge was in a better position to assess the credibility of the witnesses. If that is the import of the Law Division's statements, the conviction would be sustainable; however, if the Law Division judge was under the misapprehension that he had no latitude to consider the evidence anew and disagree with the municipal court judge's finding regarding the applicability of self-defense, that would be a mistaken exercise of the court's discretion.

We have recognized that where a judge's order is entered under the mistaken assumption that he did not have the discretion to enter a different order, believing such different order was beyond his power, that is not a true exercise of discretion. See, e.g., O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997); Alk Assocs. Inc. v. Multimodel Applied Sys. Inc., 276 N.J. Super. 310, 314 (App. Div. 1994). "No deference need be accorded the actions of the trial court where there is a failure to exercise discretion because the court did not realize it has such discretion, or where the exercise of discretion is mistaken or arbitrary." Alk Assocs., supra, 276 N.J. Super. at 315. While ordinarily a reviewing court gives deference to a discretionary decision, it does not do so where the trial court acted under a misconception of the applicable law. O'Neill, supra, 304 N.J. Super. at 550 (citing Alk Assocs., supra, 276 N.J. Super. at 314).

The facts of this case are not complicated. The State and defendant only dispute the details of the altercation. Specifically, the question of fact left for the Law Division to decide was not whether an altercation occurred or even whether Gross sustained an injury. Rather, the issue was whether defendant acted in self-defense.3 In making this finding, the Law Division was obliged to make its own "original findings and rulings on the evidence, [though it is] limited to the evidentiary record created in the [m]unicipal [c]ourt." State v. Loce, 267 N.J. Super. 102, 104 (Law Div. 1981), aff'd, 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993). "The Law Division judge [is] bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing Johnson, supra, 42 N.J. at 157).

Here, the Law Division judge stated "there could have been a reason for self defense," and he offered that he "probably would have reached a different conclusion than the . . . Trial Judge." Yet, he stated the trial judge's "finding is clear, . . . and I have to give deference to that." At the very best, that ruling is ambiguous; at worst, it is contradictory. Unfortunately, we cannot discern whether this was an outright surrender of the court's authority and obligation to make an independent assessment of the facts or merely an acceptance of the municipal court's credibility determinations. Under such circumstances, we see no alternative but to remand to the Law Division for a clarification of the basis for its order and for further findings of fact and conclusions of law based upon the record created in the municipal court.

The State has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense in struggling with Gross. State v. Rodriguez, 195 N.J. 165, 171 (2008); State v. Kelly, 97 N.J. 178, 200 (1984). We note that a defendant cannot claim self-defense when he was the aggressor. State v. Villanueva, 373 N.J. Super. 588, 600 (App. Div. 2004) (citing State v. Moore, 158 N.J. 292, 311-12 (1998)). Here, the municipal court did not find self-defense a plausible recourse for defendant, explaining that the defendant was standing outside Gross's truck while Gross was seated in the truck. On the other hand, the Law Division judge perceived "there could have been a reason for self defense here." As our role is limited, we must only consider whether there is sufficient evidence in the record to uphold the decision of the Law Division. See Locurto, supra, 157 N.J. at 471 (quoting Johnson, supra, 42 N.J. at 162); see also Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988). The role of the Law Division was to make independent findings of fact.

The reasons for the Law Division's disposition of the case are unclear. The Law Division's actual findings of fact and the basis therefor can be illuminated on remand. R. 1:7-4.

Remanded for clarification and, if warranted, further proceedings. We do not retain jurisdiction.

1 N.J.S.A. 2C:12-1(a)(1) provides "a. simple assault. A person is guilty of assault if he [] (1) [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" Bodily Injury is defined in N.J.S.A. 2C:11-1(a) to mean "physical pain, illness or any impairment of physical condition."

2 Defendant was initially charged with aggravated assault, N.J.S.A. 2C:12-1(b)(2), but that charge was later reduced to simple assault, N.J.S.A. 2C:12-1(a)(1), and the matter was tried in municipal court, where defendant was found guilty. Defendant appealed to the Law Division, which also found defendant guilty.

3 Pursuant to N.J.S.A. 2C:3-4, "the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion."