STATE OF NEW JERSEY VS. MICHAEL HELLER (6080, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2589-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL HELLER,

Defendant-Appellant.

Argued June 7, 2017 – Decided July 26, 2017

Before Judges Alvarez, Accurso, and Lisa.

On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Municipal Appeal No. 6080.

Michael Confusione argued the cause for
appellant (Hegge & Confusione, LLC,
attorneys; Mr. Confusione, of counsel and on
the brief).

Tom Dominic Osadnik, Assistant Prosecutor,
argued the cause for respondent (Camelia M.
Valdes, Passaic County Prosecutor, attorney;
Mr. Osadnik, of counsel and on the brief).

PER CURIAM
 Defendant Michael Heller appeals his February 11, 2016

conviction for simple assault, N.J.S.A. 2C:12-1(a)(1), after a

trial de novo in the Law Division. See R. 3:23. We affirm.

The original charges were downgraded and remanded to the

municipal court. Section (a)(1) of the statute states that an

assault occurs when a person "[a]ttempts to cause or purposely,

knowingly or recklessly causes bodily injury to another."

N.J.S.A. 2C:12-1(a)(1). Defendant was convicted after trial.

In rendering his decision, the municipal court judge first

reviewed the testimony of the State's witnesses and of

defendant. He said:

The charge is 2C:12-1(a)(1). As a simple
assault, a person is guilty of assault if he
attempts to cause or purposely, knowingly or
recklessly causes bodily injury to another.

I do find the State['s] witnesses to be
credible.

After a discussion regarding how inappropriate he considered the

confrontation between the parties, given that it occurred at a

preschool graduation involving families and very young children,

he continued:

I'm going to find that the State has
proved this case beyond a reasonable doubt,
based on the credibility that I have just
contacted, or that I've just, uh, put on the
record. I'm going to find you guilty of at
least placing the victim in fear for her
safety, by the words spoken, the fact that

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 you even admit your height and weight, that
you put her in at least imminent fear.
There has not been anybody to say, other
than the victim, uh, or witness, the fact
that she was struck, and but I find that the
State has proven what's necessary under that
statute.

He sentenced defendant to two years' probation, subject to the

completion of an anger management program, and payment of

appropriate fines, penalties, and assessments.

At the first hearing on the trial de novo appeal, the Law

Division judge expressed confusion as to the section of the

statute under which defendant had been convicted. He observed

that it was clear that the case was tried under (a)(1), and the

municipal court judge found defendant guilty of an (a)(1)

offense, but that towards the end of the decision he rendered

from the bench he used language from section (a)(3). That

section of the statute defines assault as "[a]ttempts by

physical menace to put another in fear of imminent serious

bodily injury." N.J.S.A. 2C:12-1(a)(3).

After hearing argument, the Law Division judge indicated he

was reserving decision on the matter. It is not clear how the

judge communicated the decision, orally from the bench, in

writing, or merely by an order to the municipal court. In any

event, he remanded the matter to the municipal court judge for

clarification.

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 In response, the municipal court judge issued a letter,

reiterating his trial findings, including that the State's

witnesses were credible. No additional proceedings were

conducted between the trial and the letter. No additional

submissions were considered, nor were any additional arguments

made. The municipal court judge stated unequivocally that the

State had proven a violation of N.J.S.A. 2C:12-1(a)(1) beyond a

reasonable doubt.

The appeal was finally heard on February 11, 2016. The Law

Division judge after hearing argument opined that under Rule

3:23-8, it was proper to have remanded the case for the

municipal court judge to clarify his decision. He then

proceeded to review the testimony of the trial witnesses,

finally concluding that defendant punched the victim, she "fell

backwards, bounced off a door, and hit her head on the floor.

She said she had bruises . . . , cracked a molar, . . . and

. . . passed out." The judge found the victim's bodily injuries

were corroborated by the emergency room records. He further

found that defendant's testimony that the victim "dove into the

wall is not believable." Having found defendant guilty under

section (a)(1), he resentenced him to the same sanctions

previously imposed in the municipal court proceeding.

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 During the course of the lengthy municipal court trial, the

details of the confrontation were thoroughly developed. They

need not be fully repeated here. In addition to the victim's

testimony, the record included that of first responders who

observed the victim lying on the ground unconscious when they

arrived at the scene. The victim and defendant had argued at a

preschool graduation concerning plumbing work defendant agreed

to perform in lieu of paying his child's tuition.

The victim's emergency room records were admitted into

evidence. Eyewitnesses, although they did not see defendant

strike the victim, saw or heard them arguing immediately before

the incident, and knew that the victim had landed on the floor.

Defendant denied punching the victim, specifically denying

that he would punch someone using both hands in the chest as the

victim had described. He said that if he had punched her in the

manner he would strike someone in a bar fight, which he denied

having done, he "would be probably [] convicted of murder." He

also admitted yelling at one of the eyewitnesses who tried to

intervene, "don't fucking touch me," and that he "grew a set

real fast."

On appeal, defendant raises the following points for our

consideration:

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 POINT I
THE LAW DIVISION ERRED IN REMANDING THE
MATTER TO THE MUNICIPAL COURT AND ALLOWING
THE MUNICIPAL COURT JUDGE TO "CLARIFY" HIS
VERDICT. DOING SO VIOLATED DEFENDANT'S
RIGHTS AGAINST DOUBLE JEOPARDY UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I,
PARAGRAPH 11 OF THE NEW JERSEY CONSTITUTION.

POINT II
NO CONVICTION UNDER N.J.S.A. 2C:12-1[(a)](3)
-- "ATTEMPTS BY PHYSICAL MENACE TO PUT
ANOTHER IN FEAR OF IMMINENT SERIOUS BODILY
INJURY" -- CAN BE SUSTAINED AGAINST
DEFENDANT BECAUSE THE LAW DIVISION COURT DID
NOT FIND BEYOND A REASONABLE DOUBT THAT
DEFENDANT COMMITTED THIS CRIME, AND
DEFENDANT WAS NEVER CHARGED WITH A VIOLATION
OF THIS CRIME IN THE MUNICIPAL COURT IN
ACCORDANCE WITH HIS DUE PROCESS RIGHTS.

POINT III
THE ADMISSION OF HEARSAY EVIDENCE AT THE
MUNICIPAL COURT TRIAL VIOLATED THE RULES OF
EVIDENCE AND DEFENDANT'S CONSTITUTIONAL
RIGHT TO CONFRONT THE WITNESSES AGAINST HIM,
AND THE LAW DIVISION JUDGE'S SUBSEQUENT
RELIANCE ON THIS HEARSAY TESTIMONY
DEMONSTRATES THAT THE DECISION IS NOT BASED
ON SUBSTANTIAL, CREDIBLE EVIDENCE IN THE
RECORD.

I.

In reviewing a trial court's decision on a municipal

appeal, an appellate court must consider only "the action of the

Law Division and not that of the municipal court." State v.

Palma, 219 N.J. 584, 591-92 (2014) (quoting State v. Joas, 34

N.J. 179, 184 (1961)). In the process we do not "weigh the

6 A-2589-15T2
evidence, assess the credibility of witnesses, or make

conclusions about the evidence," but rather must determine

whether the trial court's findings "could reasonably have been

reached on sufficient credible evidence present in the

record." State v. Locurto, 157 N.J. 463, 472 (1999) (citing

State v. Barone, 147 N.J. 599, 615 (1997)). However, "[a] trial

court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special

deference." Manalapan Realty L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).

II.

The United States Constitution provides that no person

"shall [] be subject for the same offense to be twice put

in jeopardy of life or limb." U.S. Const. amend. V; State v.

Allah, 170 N.J. 269, 279 (2002). The New Jersey Constitution

states "[n]o person shall, after acquittal, be tried for the

same offense." N.J. Const. art. I, ¶ 11. "Individuals are

constitutionally protected against being tried twice for the

same offense." Allah, supra, 170 N.J. at 279 (citing State v.

Loyal, 164 N.J. 418, 435 (2000)). "[T]he defense of double

jeopardy is available to a defendant, even though the first

trial was in a municipal court, as is here the case." State v.

Ebron, 61 N.J. 207, 215 (1972) (citation omitted). Recently,

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our Supreme Court adopted the double jeopardy same-elements test

announced in Blockburger v. United States, 284 U.S. 299, 304, 52

S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). State v. Miles, ___

N.J. ___ (2017). "The same-elements test analyzes the elements

of the competing statutes to determine if each contains an

element the other does not. If each statute contains at

least one unique element, the subsequent prosecution may

proceed." Miles, supra, ___ N.J. at ___.

Here, the basis for defendant's appeal is that the

municipal court judge acquitted him of (a)(1), and found him

guilty under section (3) of the assault statute, under which he

was not charged. Since he had been acquitted, remanding the

matter implicated double jeopardy principles.

We disagree. The municipal court judge's oral decision can

only be understood to mean that he found defendant guilty of

assault under section (a)(1), although he referred to the

language of (3) towards the end, the reference was a mere slip

of the tongue. He began his decision with the words "The charge

is 2C:12-1(a)(1)."

Defendant knew from the outset the section under the

statute under which he was being tried, section (a)(1).

Throughout the trial, everyone proceeded on the assumption

defendant was being tried under section (a)(1). And, most

8 A-2589-15T2
importantly, when the judge began making his findings, he

referred to that section of the statute. The municipal court

judge's commentary regarding his concern that a physical

confrontation occurred during a preschool graduation no doubt

distracted him from the task at hand. Defendant's contention

that the judge's mistaken reference to the language of (a)(3)

after the judge convicted him of (a)(1) was equivalent to an

acquittal lacks merit.

Moreover, to have asked for clarification did not place

defendant in any additional jeopardy. No new evidence was

received, or argument made. The judge's written decision refers

to precisely the same testimony he discussed in rendering his

decision from the bench in the first instance.

III.

We find defendant's point II, related to the proofs

supporting an (a)(3) conviction, is moot in light of our

decision. See Greenfield v. N.J. Dep't of Corr., 382 N.J.

Super. 254, 257-88 (App. Div. 2006) (citation omitted) ("An

issue is 'moot' when the decision sought in a matter, when

rendered, can have no practical effect on the existing

controversy."). And as the New Jersey Supreme Court has

recently stated, in considering a municipal court appeal, we now

weigh only "the action of the Law Division and not that of the

9 A-2589-15T2
municipal court." See Palma, supra, 219 N.J. at 591-92 (citing

Joas, supra, 34 N.J. at 184). Because the Law Division judge's

decision was reasonably reached on sufficient credible evidence

in the record, it is entitled to be affirmed.

IV.

Finally, defendant objects that hearsay evidence was

improperly admitted and relied upon by the municipal court

judge. This issue is also moot, as pursuant to Palma, we look

at the Law Division's assessment of the evidence.

The Law Division judge rendered his decision solely upon

the victim's testimony, the medical records from the hospital

that were properly admitted under the hearsay rules of evidence,

and eyewitnesses' observation of defendant's hands in the air

and the victim falling to the floor.

The Law Division judge noted that the hospital records

included a statement by the victim that she was struck by a

parent at the graduation ceremony and such "statements as to the

cause of the injury are not automatically within the hearsay

exception[.]" Dinter v. Sears, Roebuck & Co., 252 N.J. Super.

84, 92 (App. Div. 1991). However, "reversal is required only

when an unjust result occurred." Ibid.

The victim's statement regarding who struck her was not

made in a vacuum. She testified defendant struck her, testimony

10 A-2589-15T2
corroborated by persons standing nearby. The Law Division judge

did not rely on improper hearsay testimony in rendering his

decision. There were ample proofs that defendant was guilty

beyond a reasonable doubt of subsection (a)(1).

Affirmed.

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