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DOCKET NO. A-3071-09T3







January 9, 2012


Submitted September 27, 2011 - Decided


Before Judges Yannotti and Espinosa.


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 28-09.


Robert J. Civile, attorney for appellant.


Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; Meghan Clark, Assistant Prosecutor, on the brief).



Defendant was convicted in municipal court and in the Law Division of simple assault, N.J.S.A. 2C:12-1(a)(1). He challenges his conviction in this appeal. We affirm.

The evidence presented in municipal court can be summarized as follows.

Defendant and his sister, Judy Grassi, resided at the same address. Judy1 testified that, at approximately 4:45 p.m. on September 20, 2008, she was in the laundry room when defendant entered through the front door. He angrily yelled at her, "get out, get out . . . or I'll throw you out[.]" Judy told defendant she was not leaving and attempted to change the subject and return to the work she was doing. Defendant again said, "get out." Judy said, "I'm not going anywhere, I'm not done with what I'm doing."

Judy testified that defendant grabbed her by both arms and dragged her from the back of the house through four rooms to the front door. As he opened the door, she tried to shut the door behind him, but he was still holding one of her arms and was able to stop her. Judy then told defendant she wanted to wash up because her knees were "really raw[.]" Defendant told her she had to leave and pushed her out of the house.

After calling her sister, Judy called the police at about 5:15 p.m. They arrived at approximately 5:30 p.m.

Patrolman Steve Harrington of the Toms River Police Department testified that he was dispatched to the Grassi residence that day and observed Judy, visibly upset, with some injuries to her knees. He asked defendant what had happened. Defendant said that he just did not want his sister living at the house any more and did not go into any further detail. Harrington then arrested defendant.

Defendant, who appeared pro se in the municipal court, did not testify or present any evidence.

On April 15, 2009, the first day of trial, defendant asked for an adjournment because three witnesses were not subpoenaed by the court. He identified the witnesses as persons who would provide an alibi by testifying he was in a diner at approximately 2:00 p.m. on September 20, 2008. The municipal court judge explained to defendant that he was responsible for service of subpoenas upon his witnesses. The judge denied the request for an adjournment but stated that the matter would proceed through the State's case and then recess until another date so defendant could subpoena his witnesses.

Defendant also objected that the State had failed to provide him with discovery. The prosecutor represented that the discovery, including photographs to be used as evidence, was provided to defendant by letter dated November 5, 2008. Defendant maintained that he had not received all of the discovery and specifically, had not received the photographs in question. The municipal court judge instructed the prosecutor to provide defendant with a copy of all the discovery in court. The judge announced he would take a twenty-minute recess to allow defendant to review the discovery. The judge stated further that if defendant felt he could proceed after his review, the case would proceed and, if not, an adjournment would be granted. After the recess, the prosecutor represented that he provided defendant with a copy of the November 5, 2008 cover letter and all its attachments, photographs he intended to use as evidence, a copy of the reports prepared by Patrolman Harrington and a copy of the summons and complaint. Defendant stated he could not proceed because he was unable to read through the approximately fifty pages he had received. He continued to object that the State had not provided discovery within ten days of his demand for same. Based upon the State's representation that only the photographs would be used at trial, the judge decided to proceed with the State's case and then adjourn until a date when defendant could proceed with his defense and witnesses.

On June 10, 2009, the continued date for the trial, defendant's witnesses did not appear. Defendant asked for another adjournment to have his witnesses "re-notified" to appear. The municipal court judge denied the motion. The judge found defendant guilty of simple assault and sentenced defendant to "time served," defendant having served five and one-half months, a $500 fine, $50 V.C.C.B. penalty, $75 Safe Neighborhood Fund fee, a $100 Domestic Violence surcharge and court costs. Defendant appealed to the Law Division and was convicted.

In this appeal, defendant argues that the State failed to prove his guilt beyond a reasonable doubt; that the municipal court erred in allowing the State to present evidence after it failed to provide discovery in a timely fashion; and that the court erred in denying his repeated requests for an adjournment. Defendant also purports to include additional arguments advanced in his pro se briefs in the trial court based upon State v. Rue, 175 N.J. 1 (2002).

After carefully reviewing the record and arguments, we are satisfied that none of defendant's arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

Unlike the Law Division, which conducts a de novo review of the record, we do not "weigh the evidence anew[.]" State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). Our role is "to determine whether the findings made could reasonably have been reached on sufficient credible evidence presented in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (internal quotation marks and citation omitted). In discharging this role, we "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.

N.J.S.A. 2C:12-1(a)(1) provides that a person is guilty of simple assault if he "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]"

The testimony of Judy Grassi and Patrolman Harrington, which the court deemed to be credible, provided ample support for defendant's conviction.

Defendant also challenges the court's decision to allow evidence that he claims was not provided to him in pretrial discovery and in denying his adjournment requests. Both of these matters lay within the court's discretion. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (trial court has discretion to deal with all discovery matters); State v. Hayes, 205 N.J. 522, 537 (2011) (decision to grant or deny a request for an adjournment rests in the discretion of the court); Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (trial courts have discretion to impose sanctions for failure to provide discovery); State v. Malsbury, 186 N.J. Super. 91, 98 (Law Div. 1982) (appropriate redress for failure to comply with discovery obligations in municipal court pursuant to R. 7:7-7(g) "is discretionary with the court"), overruled on other grounds by State v. Matulewicz, 198 N.J. Super. 474 (App. Div. 1984).

As for the alleged failure to comply with discovery obligations, the court ordered that a duplicate set of discovery materials be provided to defendant, gave him time to review the materials before the trial began, and continued the trial for several months after the State rested. The adjournment served to provide defendant with sufficient time to both review the discovery and subpoena his witnesses before he presented any defense. Defendant has not identified any prejudice he suffered as a result of the procedure elected by the municipal court, and we discern no prejudice on this record. The testimony defendant sought to obtain from witnesses regarding his whereabouts over two hours before the assault would not have cast any doubt upon the State's case.

Finally, defendant's reliance upon Rue, supra, is misplaced. The arguments advanced in municipal court in pro se briefs are not a part of the appellate record from the Law Division and therefore are not properly presented for our consideration.


1 We use Ms. Grassi's first name only to avoid confusion with defendant and mean no disrespect by the informality.