STATE OF NEW JERSEY VS. ERIC GROETHING(3-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2335-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC GROETHING,

Defendant-Appellant.

_____________________________________

Argued April 26, 2017 – Decided August 7, 2017

Before Judges Fuentes, Carroll and Farrington.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Municipal
Appeal No. 3-15.

Jeffrey G. Garrigan argued the cause for
appellant (Cammarata, Nulty & Garrigan, LLC,
attorneys; Mr. Garrigan, on the brief).

Frances Tapia Mateo, Assistant Prosecutor,
argued the cause for respondent (Esther
Suarez, Hudson County Prosecutor, attorney;
Ms. Mateo, on the brief).

PER CURIAM

Defendant Eric Groething was involved in a physical

altercation with Nicholas Garret. The incident occurred in the
basement laundry room of the apartment building in Jersey City

where both men resided; the incident was videotaped by the

building's security camera. The reasons that triggered this

physical confrontation between these two adults are not germane

to the legal issues raised in this appeal. Suffice it to say it

concerned what can best be described as a violation of laundry-

room etiquette. The videotape recording shows that the altercation

ended when Groething overpowered Garret and left him unconscious

on the floor. At the time, Groething was employed as a police

officer by the Plainfield Police Department. However, his status

as a police officer played no role in this matter. He was off-

duty, wore civilian clothes, and was performing a purely personal

task when he engaged Garret.

Groething reported the incident to the Jersey City Police

Department immediately after the altercation ended. Garret was

originally charged with third degree aggravated assault upon a

police officer under N.J.S.A. 2C:12-1b(5). A few days later,

Garret filed a complaint against Groething charging him with the

disorderly persons offense of simple assault, N.J.S.A. 2C:12-

1a(1), and the petty disorderly persons offense of harassment,

N.J.S.A. 2C:33-4(a). The Hudson County Prosecutor's Office's

downgraded the charge against Garret to simple assault, N.J.S.A.

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2C:12-1a(1), and the cross-complaints were transferred to the

Jersey City Municipal Court for trial.

The two cases were tried before the Jersey City Municipal

Court over two non-consecutive days. Because these matters

involved cross-complaints, the parties were represented by their

privately retained counsel who acted as both defense counsel and

private prosecutor. See State v. Myerowitz, 439 N.J. Super. 341,

354 (2015); R. 7:8-7(b). The municipal court judge found both men

guilty of committing the petty disorderly persons offense of simple

assault by engaging "in a fight or scuffle entered into by mutual

consent," N.J.S.A. 2C:12-1a, as a lesser included offense of the

disorderly persons offense of simple assault. The municipal court

judge also found Groething guilty of the petty disorderly persons

offense of harassment, N.J.S.A. 2C:33-4(a). Both men were

sentenced to pay the mandatory minimum monetary penalties, which

amounted to $125.

The parties sought a de novo review before the Law Division

pursuant to Rule 3:23-8. In addition to the factual record

developed before the municipal court, the Law Division Judge also

received briefs filed by defendants' attorneys. The Hudson County

Prosecutor's Office represented the State before the Law Division.

R. 3:23-9(c).

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 After reviewing the record developed before the municipal

court and considering the arguments of counsel, the Law Division

Judge made the following findings:

[T]he [c]ourt finds that as to Mr. Groething,
he is guilty of simple assault; that his
defense of self[-]defense has no basis in
facts and the case below; that with regards
to Mr. Garret, . . . while he was boisterous
in his language, while he . . . had an exchange
of words between himself and Mr. Groething,
[he] had not exhibited any aggressive behavior
until Mr. Groething was literally at his feet
with his hands up, at which point Mr. Garret
defended himself out of fear for his safety
and the aggression that had been exhibited to
him. And therefore there was not a basis in
the facts and evidence presented to the
[c]ourt below to find Mr. Garret guilty of
. . . simple assault or mutual fighting, as
he was acting in self[-]defense as reflected
both in the video and the testimony of the
defendant [Groething] below, which the [c]ourt
finds credible.

Therefore mutual fighting was inappropriate
and the finding that self[-]defense is not
viable with regards to mutual fighting is also
inapplicable in this case because Mr.
Groething is guilty of simple assault and
because Mr. Garret was acting in self[-]
defense.

The Law Division Judge found "no evidence" to support a

finding of harassment under N.J.S.A. 2C:33-4 and dismissed that

charge against Groething. Having found Groething guilty of simple

assault, the Law Division Judge believed a greater, more punitive

4 A-2335-15T1
sentence than the one imposed by the municipal court judge was

warranted. As the Judge noted:

The fines that were imposed as it relates to
Mr. Groething and the sentence of the [c]ourt
below . . . were the $50 Victims of Crime and
$75 Safe Neighborhood [fines]. There was
nothing else ordered by the [municipal]
[c]ourt. However, the [c]ourt is going to
require . . . an additional component of the
sentence, now that it is no longer a PDP [petty
disorderly persons] but instead a DP
[disorderly persons], that the defendant, Mr.
Groething, is required to have anger
management and/or cultural sensitivity
[training] . . . as a result of the assaultive
behavior in this particular matter.

Against this record, defendant now raises the following

arguments in this appeal.

POINT ONE

THE SUPERIOR COURT JUDGE IMPROPERLY CONVICTED
DEFENDANT OF THE DISORDERLY PERSONS OFFENSE
OF SIMPLE ASSAULT AFTER HE WAS ACQUITTED OF
THAT CHARGE AND CONVICTED OF PETTY DISORDERLY
PERSONS OFFENSE OF SIMPLE ASSAULT IN MUNICIPAL
COURT.

A. The Double Jeopardy Clause
Precludes Appellant's Conviction
for Disorderly Persons Offense
Simple Assault.

B. New Jersey Public Policy
Prohibited the Superior Court Judge
From Convicting Appellant of a More
Serious Offense Resulting in a Risk
of a Greater Sentence.

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 POINT TWO

ASSUMING ARGUENDO THIS COURT FINDS THAT DE
NOVO REVIEW SHOULD HAVE BEEN LIMITED TO THE
PETTY DISORDERLY PERSONS OFFENSE OF SIMPLE
ASSAULT, ACQUITTAL IS WARRANTED ON THAT CHARGE
AS WELL AS DEFENDANT WAS NOT ENGAGED IN A FIGHT
UNDER THE LAW.

A. The State Failed to Prove the
Element of Mutual Consent Requiring
an Acquittal of the Petty Disorderly
Persons "Fighting by Mutual
Consent" Charge.

B. The Evidence Suggests that
Defendant Groething Did Not Possess
the Intent to Fight.

We agree with defendant's argument as expressed in Point I,

reverse the judgment of the Law Division, and remand for the entry

of a judgment of acquittal. Our Supreme Court has recently

addressed two separate but highly important issues related to the

interplay between the municipal courts and the Law Division. In

State v. Robertson, 228 N.J. 138, 144 (2017), the Court for the

first time established the appropriate standards for a stay of a

driver's license suspension in a driving while under the influence

case, arising under N.J.S.A. 39:4-50, in two contexts: a judgment

of the municipal court pending a trial de novo in the Law Division,

and a determination by the Law Division pending appeal to this

court.

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 In settling this important aspect of appellate jurisprudence,

the Court in Robertson reaffirmed the standard of review between

the Law Division and the municipal court.

In the Law Division, the trial judge "may
reverse and remand for a new trial or may
conduct a trial de novo on the record below."
R. 3:23-8(a)(2). At a trial de novo, the court
makes its own findings of fact and conclusions
of law but defers to the municipal court's
credibility findings. See State v. Ross, 189
N.J. Super. 67, 75 (App. Div.), certif.
denied, 95 N.J. 197 (1983). It is well-
settled that the trial judge "giv[es] due,
although not necessarily controlling, regard
to the opportunity of the" municipal court
judge to assess "the credibility of the
witnesses." State v. Johnson, 42 N.J. 146,
157 (1964). Once again, the State must carry
the burden of proof . . . beyond a reasonable
doubt. See State v. Kuropchak, 221 N.J. 368,
382 (2015); State v. Snyder, 337 N.J. Super.
59, 61-62 (App. Div. 2001).

[Robertson, supra, 228 N.J. at 147-48.]

Recently, the Court also clarified the methodology used to

"determin[e] what constitutes the 'same offense' for purposes of

double jeopardy." State v. Miles, ____ N.J. ____, ____ (2017)

(slip op. at 2). The defendant in Miles was arrested for selling

marijuana to an undercover police officer. Ibid. He was charged

"in a warrant complaint" with possession of marijuana with intent

to distribute, N.J.S.A. 2C:35-5(b)(12), and possession of

marijuana with intent to distribute on or within 1000 feet of a

school property, N.J.S.A. 2C:35-7. Ibid. In a separate municipal

7 A-2335-15T1
summons, the defendant was also charged with the disorderly persons

offense of possession of fifty grams or less of marijuana, N.J.S.A.

2C:35-10(a)(4). Ibid. All of these charges arose from the same

core facts: the incident involving the undercover police officer.

Ibid.

After the Grand Jury returned an indictment charging

defendant with the offenses contained in the warrant complaint in

the Superior Court, the municipal court amended the disorderly

persons possession offense to loitering to possess marijuana,

N.J.S.A. 2C:33-2.1(b)(1). Id. at 3. The defendant pleaded guilty

to the amended charge in the municipal court and moved to dismiss

the indictment pending in the Superior Court on double jeopardy

grounds. Id. at 4. The defendant argued "that prosecution on the

possession charges was barred because he had already pled guilty

to an offense that arose from the same conduct." Ibid.

In rejecting the defendant's argument, our Supreme Court

adopted the United States Supreme Court's "same-elements test"

expressed in Blockburger v. United States, 284 U.S. 299, 52 S. Ct.

180, 76 L. Ed. 306 (1932), for determining whether a second

prosecution based on the same facts is barred by the Fifth

Amendment's Double Jeopardy Clause. State v. Miles, supra, slip

op. at 2. The Miles Court quoted directly from the United States

8 A-2335-15T1
Supreme Court in Blockburger to provide the following description

of the "same-elements" test:

[W]here the same act or transaction
constitutes a violation of two distinct
statutory provisions, the test to be applied
to determine whether there are two offenses
or only one, is whether each provision
requires proof of a fact which the other does
not." In other words, if each statute at issue
requires proof of an element that the other
does not, they do not constitute the same
offense and a second prosecution may proceed.

[Id. at 11-12 (quoting Blockburger, supra, 284
U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at
309).]

In adopting the "same-elements" test in Blockburger, the

Miles Court also reaffirmed the three critical protections

embodied in the Fifth Amendment's double jeopardy clause:

It protects against (1) "a second prosecution
for the same offense after acquittal," (2) "a
second prosecution for the same offense after
conviction," and (3) "multiple punishments for
the same offense." North Carolina v. Pearce,
395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23
L. Ed. 2d 656, 664-65 (1969). Common to all
three protections is the concept of "same
offense." Accordingly, a prime concern when
reviewing a double-jeopardy claim is "whether
the second prosecution is for the same offense
involved in the first." State v. Yoskowitz,
116 N.J. 679, 689 (1989) (quoting State v. De
Luca, 108 N.J. 98, 102, cert. denied, 484 U.S.
944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987)).

[Id. at 11.]

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 However, the most definitive and clearest explanation for

overturning the Law Division's decision in this appeal is found

in N.J.S.A. 2C:1-9, which provides in pertinent part:

A prosecution of a defendant for a violation
of the same provision of the statutes based
upon the same facts as a former prosecution
is barred by such former prosecution under the
following circumstances:

a. The former prosecution resulted in an
acquittal by a finding of not guilty by the
trier of fact or in a determination that there
was insufficient evidence to warrant a
conviction. A finding of guilty of a lesser
included offense is an acquittal of the
greater inclusive offense, although the
conviction is subsequently set aside.

[(Emphasis added).]

Here, defendant Groething was acquitted by the Jersey City

Municipal Court of the disorderly persons offense of simple

assault, N.J.S.A. 2C:12-1a(1). The municipal court found him

guilty of the lesser included offense of engaging in a "fight or

scuffle entered into by mutual consent," a petty disorderly persons

offense under N.J.S.A. 2C:12-1a(3). The Law Division Judge found

Garret not guilty of committing the petty disorderly persons

offense of fighting under N.J.S.A. 2C:12-1a(3) because he did not

give his consent. Without the element of "consent," the Law

Division Judge reasoned, the State did not prove, beyond a

10 A-2335-15T1
reasonable doubt, that Garret was guilty of fighting under N.J.S.A.

2C:12-1a(3).

This reasoning also leads to one inexorable conclusion:

Groething is also not guilty of fighting under N.J.S.A. 2C:12-

1a(3). As defined under N.J.S.A. 2C:12-1a(3), mutual consent is

an indispensable element of this petty disorderly persons offense.

The Law Division Judge assumed that finding Garret not guilty for

lack of consent axiomatically empowered her to vacate the municipal

court's judgment finding Groething not guilty of simple assault.

The Law Division Judge was incorrect in this assumption. Once the

municipal court acquitted Groething of simple assault, he cannot

again be placed in jeopardy of being convicted for this offense.

State v. Miles, supra, slip op. at 11-12, 16; N.J.S.A. 2C:1-9a.

Defendant's judgment of conviction for the disorderly persons

offense of simple assault, N.J.S.A. 2C:12-1a(1), is vacated and

the matter is remanded to the trial court to enter a judgment of

acquittal consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

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