State of New Jersey v. Terri Hannah

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5741-14T3

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 20, 2016
v.
APPELLATE DIVISION
TERRI HANNAH,

Defendant-Appellant.

___________________________________

Argued October 6, 2016 – Decided December 20, 2016

Before Judges Fisher, Leone, and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Municipal
Appeal No. 01-15.

John P. Morris argued the cause for
appellant.

Kim L. Barfield, Assistant Prosecutor,
argued the cause for respondent (Jennifer
Webb-McRae, Cumberland County Prosecutor,
attorney; Elizabeth K. Tornese, Assistant
Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Terri Hannah appeals her July 10, 2015 conviction

for simple assault after a trial de novo in the Law Division,

following her conviction in municipal court. She argues that a
Twitter posting was improperly admitted into evidence, citing a

Maryland case requiring that social media postings must be

subjected to a greater level of authentication. We reject that

contention, holding that New Jersey's current standards for

authentication are adequate to evaluate the admission of social

media postings. Under those standards, we find it was not an

abuse of discretion to admit the tweet. Finding defendant's

remaining claims lack merit, we affirm.

I.

The Law Division found the following facts based on the

testimony in the Vineland Municipal Court. On September 22,

2012, Arnett Blake and his girlfriend, Cindy Edwards, attended a

party at a community center. Defendant, Blake's ex-girlfriend,

also attended the party.

While in the bathroom, Edwards encountered defendant

"making rude comments about her." While Edwards was still in

the bathroom, defendant exited the bathroom, approached Blake,

and said "I should F your girlfriend up." Later that night,

defendant purposefully bumped into Blake.

As Edwards and Blake were in the lobby trying to leave the

party, defendant quickly approached Blake with her closed fist

in the air. Blake reacted by pushing defendant away, prompting

security to grab him. When Edwards turned to say something, she

2 A-5741-14T3
saw defendant holding a high-heeled shoe, with which defendant

struck Edwards in the face. Blake also saw defendant hit

Edwards with a shoe as he was being escorted outside. When

defendant was brought outside, Edwards saw defendant did not

have her shoes on.

Edwards and Blake went to the police station to report the

incident and then went to the hospital, where Edwards received

nine stitches. After the assault, defendant and Edwards had

communications "back and forth" on Twitter. On December 28,

2012, Edwards saw defendant posted a tweet saying "shoe to ya

face bitch."

In municipal court, defendant offered a different version

of events. Defendant testified she approached Blake and told

him that she heard "hearsay . . . saying that [she] was going to

. . . beat his girlfriend up." Defendant told Blake she "wanted

to clear the air and let him know that [she was] not going to do

anything to [his girlfriend]." Later during the party he

"push[ed] [defendant] to the side." Defendant later saw Blake

in the lobby and decided to ask him why he pushed her. She

became aggressive and started yelling, and a security guard took

her "straight out . . . of the party." Defendant testified she

never saw Edwards that night and never punched anyone or hit

anyone with a shoe.

3 A-5741-14T3
 Defendant called as a witness a security guard at the

party, who testified he saw defendant approaching a man "in an

aggressive manner" and heard her make hostile remarks.

"[B]efore she could do anything," the guard "snatched her up and

. . . took her out of the building." He told her she was not

permitted to reenter the party. He did not see Blake or Edwards

or see defendant hit anyone with a shoe.

Defendant was charged with aggravated assault, but the

charge was downgraded to simple assault, a disorderly persons

offense. N.J.S.A. 2C:12-1(a)(1). On January 12, 2015, the

municipal court found defendant guilty and imposed a $307 fine

plus costs and assessments. Defendant appealed. On June 5,

2015, the Law Division conducted a trial de novo, hearing oral

argument. After reserving decision, the Law Division found

defendant guilty of simple assault and imposed the same monetary

penalties. The Law Division credited Edwards and Blake, found

defendant not credible, and found the passage of two years

compromised the security guard's recollection of the event.

On appeal to this court, defendant argues:

POINT I - THE COURT'S ADMISSION OF THE TWEET
(S-4), CLAIMED BY THE STATE TO HAVE BEEN
POSTED BY THE DEFENDANT TO HER TWITTER
ACCOUNT, WAS ERROR AS:

(1) THE SUPERIOR COURT JUDGE
MISTAKENLY ADOPTED WHAT HE BELIEVED TO
BE THE DIFFERENT, MORE LENIENT TEXAS

4 A-5741-14T3
 AUTHENTICATION STANDARD [RATHER THAN
THE MARYLAND STANDARD] WITHOUT
UTILIZING NEW JERSEY'S CIRCUMSTANTIAL
EVIDENCE MODE OF AUTHENTICATION,
N.J.R.E. 901, AND ASSESSING THE NON-
PRODUCTION OF THE OTHER "DIFFERENT"
SNAPSHOTS SUPPOSEDLY TAKEN BY THE
ACCUSER IN AN ALLEGED EXCHANGE OF
TWEETS BETWEEN ACCUSER AND DEFENDANT
SOME THREE MONTHS AFTER THE ALLEGED
ASSAULT;

(2) THIS JUDGE IMPROPERLY
AUTHENTICATED THE TWEET BY RELYING ON
THE ACCUSER'S TESTIMONY AS WELL AS THAT
OF THE DEFENDANT, WHO ONLY TESTIFIED
AFTER THE STATE HAD RESTED;

(3) WITH THIS JUDGE FINDING [SIC] THAT
THE DEFENDANT'S JANUARY 12, 2015
MUNICIPAL COURT TESTIMONY WAS NOT
CREDIBLE BECAUSE HE CONTRASTED HER
TESTIMONY WITH EXHIBIT D-4 ATTACHED TO
DEFENSE COUNSEL'S MAY 8, 2015 APPEAL
BRIEF; AND,

(4) THIS JUDGE ADMITTED THE TWEET,
WITHOUT ANALYSIS AS TO THE TWEET'S
RELEVANCE OR PROBATIVE VALUE.

POINT II - THE SEQUESTRATION ORDER WAS
IMPOSED AT THE START OF THE JANUARY 12, 2015
MUNICIPAL COURT TRIAL. THE SEQUESTRATION
ORDER WAS NOT ENFORCED AS THE ALLEGED VICTIM
WAS ALLOWED TO REMAIN IN THE COURTROOM BY
THE JUDGE AFTER HER TESTIMONY; ALLOWING HER
TO BE PRESENT WHILE HER BOYFRIEND TESTIFIED.
THE BOYFRIEND'S EQUIVOCAL AND SEEMINGLY
CONTRADICTORY OR "FORGETFUL" RESPONSES
STRONGLY SUGGEST VISUAL CUES FROM THE
ALLEGED VICTIM. THE LAW DIVISION JUDGE'S
WRITTEN OPINION IS DEVOID OF ANY
CONSIDERATION OR DISCUSSION OF THAT ISSUE.
THAT VIOLATION, BY ITSELF, SHOULD HAVE
RESULTED IN REVERSAL AND REMAND TO THE

5 A-5741-14T3
 MUNICIPAL COURT WITH STRICT ADHERENCE
THEREAFTER TO THE SEQUESTRATION ORDER.

THIS DEFENDANT'S CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND A FAIR TRIAL WERE VIOLATED;
NO SHOWING OF PREJUDICE IS REQUIRED IN THESE
CIRCUMSTANCES. DEFENDANT'S CONSTITUTIONAL
RIGHTS OVERRIDE ANY CONSTITUTIONAL RIGHTS OF
A VICTIM OF CRIME. THIS TRIAL INVOLVED NOT
A CRIME BUT A DISORDERLY PERSON'S OFFENSE.
[CONSTITUTIONAL ASPECT NOT RAISED BELOW].

POINT III - THE RELIEF REQUESTED ON THE
APPEAL SOUGHT REVERSAL AND REMAND FOR TRIAL
IN THE MUNICIPAL COURT, R. 3:23-8(a)(2);
RELIEF MANDATED FOR SUPPLEMENTATION OF THE
MUNICIPAL COURT RECORD: (1) TO ALLOW
DEFENDANT THE OPPORTUNITY TO RESPOND TO THE
ADVERSE INFERENCE DETERMINATION MADE AGAINST
HER BY THE MUNICIPAL COURT JUDGE, (2) TO
ALLOW THE STATE TO ATTEMPT TO ESTABLISH
AUTHENTICATION OF THE TWITTER POSTING, AND,
(3) TO ALLOW THE MUNICIPAL COURT TO DEAL
WITH THE, AS YET, UNRESOLVED ISSUE OF
SEQUESTRATION VIOLATION SET FORTH IN POINT
II ABOVE. R. 3:23-8 WAS AMENDED TO PERMIT
SUCH SUPPLEMENTATION BY REMAND TO THE
MUNICIPAL COURT, A REMEDIAL DEVICE NOT
ACKNOWLEDGED BY THIS JUDGE.

II.

Defendant argues a message sent on Twitter should not have

been admitted as it was not properly authenticated.1

1
"Twitter is self-described as 'an information network made up
of 140-character messages called Tweets.'" State ex rel. J.F.,
446 N.J. Super. 39, 44 n.7 (App. Div. 2016) (citation omitted);
accord The Twitter Glossary, Twitter, Inc.,
https://support.twitter.com/articles/166337# (last visited Dec.
13, 2016) (hereinafter Glossary). "These messages are posted to
your profile, sent to your followers, and are searchable on
Twitter search." New User FAQs, Twitter, Inc.,
(continued)

6 A-5741-14T3
"[C]onsiderable latitude is afforded a trial court in

determining whether to admit evidence, and that determination

will be reversed only if it constitutes an abuse of discretion."

State v. Kuropchak, 221 N.J. 368, 385–86 (2015) (citation

omitted). "Under that standard, an appellate court should not

substitute its own judgment for that of the trial court, unless

'the trial court's ruling "was so wide of the mark that a

manifest denial of justice resulted."'" Ibid. (citation

omitted). We must hew to our standard of review.

The municipal court and the Law Division each admitted as

Exhibit S-4 the following tweet allegedly posted by defendant on

December 28, 2012: "No need for me to keep responding to ya

stupid unhappy fake mole having ass.. how u cring2 in a corner

with a shoe to ya face bitch." The tweet displayed defendant's

profile photo and defendant's Twitter handle, "@cirocgirl25."3

(continued)
https://support.twitter.com/articles/13920# (last visited Dec.
6, 2016).
2
Edwards interpreted "cring" as "crying." Defendant read
"cring" as "cringe."
3
A Twitter "'handle' is used to identify a particular user on
Twitter and is formed by placing the @ symbol next to a
username." Roca Labs, Inc. v. Consumer Op. Corp., 140 F. Supp.
3d 1311, 1319 n.4 (M.D. Fla. 2015). A Twitter "username is how
you're identified on Twitter, and is always preceded immediately
by the @ symbol." Glossary. A Twitter "header photo" is
"[y]our personal image that you upload, which appears at the top
(continued)

7 A-5741-14T3
 Edwards testified she recognized the tweet as being written

by defendant because it displayed defendant's picture. She also

was familiar with defendant's Twitter handle, "@cirocgirl25."

Moreover, Edwards testified the tweet was posted "in response to

things that [Edwards] was saying" and they were communicating

"back and forth." On December 28, 2012, Edwards went onto

defendant's Twitter page, saw the posted tweet, and captured it

as a screenshot.4

Defendant testified the Twitter page displayed a picture of

her and her Twitter handle. However, she testified she did not

author the tweet.

When the State sought to admit the tweet, defense counsel

objected, arguing "[t]here's no way anybody besides Twitter can

say that this came from [defendant]." In admitting the tweet,

the municipal court ruled nothing "requires somebody to be here

from Twitter. I think somebody can testify as to it as Ms.

Edwards [did] and we go from there."

At the trial de novo, the Law Division classified the

methods of authenticating a social media post into two camps:

(continued)
of your profile." Ibid. This "profile photo" "appears next to
each of your Tweets." Ibid.
4
"A 'screenshot' is a snapshot image of the information
displayed on a computer screen at a given point in time." State
v. Ravi, 447 N.J. Super. 261, 270 n.8 (App. Div. 2016).

8 A-5741-14T3
the Maryland approach and the Texas approach, respectively

citing Griffin v. State, 19 A.3d 415 (Md. 2010), and Tienda v.

State, 358 S.W.3d 633 (Tex. Crim. App. 2012).

In Griffin, the Maryland Court of Appeals considered what

the test should be for the authentication of printed pages of a

MySpace profile. Griffin, supra, 19 A.3d at 416-17. Citing

"[t]he potential for abuse and manipulation of a social

networking site by someone other than its purported creator

and/or user," Griffin ruled that images from such a site require

"greater scrutiny" than "letters and other paper records." Id.

at 423-24 (concluding that "a printout of an image from such a

site requires a greater degree of authentication"). The court

suggested three possible methods of authentication. Id. at 427.

The first method was "to ask the purported creator if she

indeed created the profile and also if she added the posting in

question, i.e. '[t]estimony of a witness with knowledge that the

offered evidence is what it is claimed to be.'" Ibid. (citation

omitted). The second method was "to search the computer of the

person who allegedly created the profile and posting and examine

the computer's internet history and hard drive to determine

whether that computer was used to originate the social

networking profile and posting in question." Ibid. The third

method was "to obtain information directly from the social

9 A-5741-14T3
networking website that links the establishment of the profile

to the person who allegedly created it and also links the

posting sought to be introduced to the person who initiated it."

Id. at 428.

In Tienda, the Texas Court of Criminal Appeals did not

employ any of the three Griffin methods but concluded "there are

far more circumstantial indicia of authenticity in this case

than in Griffin – enough, we think, to support a prima facie

case that would justify admitting the evidence and submitting

the ultimate question of authenticity to the jury." Tienda,

supra, 358 S.W.3d at 647. The Texas court found "the internal

content of . . . [the] MySpace postings – photographs, comments,

and music – was sufficient circumstantial evidence to establish

a prima facie case such that a reasonable juror could have found

that they were created and maintained by" a particular

individual. Id. at 642.

Here, the Law Division found "[t]he Maryland approach is

too strict in its authentication requirements," stating that its

three methods "are unrealistic for a party to fulfill" and

"create a higher bar than originally intended by the Rules."

Accordingly, the Law Division "chose[] to adopt a rule of

admissibility more similar to the Texas approach."

10 A-5741-14T3
 Defendant argues that Texas follows the Maryland approach

and that we should adopt the Maryland approach with its "three

non-exclusive methods" of authentication. Id. at 647. We

reject any suggestion that the three methods of authentication

suggested in Griffin are the only methods of authenticating

social media posts. We also reject Griffin's suggestion that

courts should apply greater scrutiny when authenticating

information from social networks. See Parker v. State, 85 A.3d

682, 686-87 (Del. 2014) (rejecting the Griffin "greater

scrutiny" approach and "conclud[ing] that social media evidence

should be subject to the same authentication requirements under

the Delaware Rules of Evidence Rule 901(b) as any other

evidence"); see also United States v. Vayner, 769 F.3d 125, 131

n.5 (2d Cir. 2014) (noting that Griffin requires "greater

scrutiny" and stating "we are skeptical that such scrutiny is

required").

Rather, we agree with Tienda's observation that

[c]ourts and legal commentators have reached
a virtual consensus that, although rapidly
developing electronic communications
technology often presents new and protean
issues with respect to the admissibility of
electronically generated, transmitted and/or
stored information, including information
found on social networking web sites, the
rules of evidence already in place for
determining authenticity are at least
generally "adequate to the task."

11 A-5741-14T3
 [Tienda, supra, 358 S.W.3d at 638–39
(citation omitted).]

Indeed, "jurisdictions across the country have recognized that

electronic evidence may be authenticated in a number of

different ways consistent with Federal Rule 901 and its various

state analogs." Id. at 639.

"Despite the seeming novelty of social network-generated

documents, courts have applied the existing concepts of

authentication under Federal Rule 901 to them," including "the

reply letter doctrine [and] content known only to the

participants." 2 McCormick on Evidence § 227, at 108 (Broun

ed., 2013).5 N.J.R.E. 901 "generally follows Fed. R. Evid. 901"

and incorporates both of those methods for authentication.

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence

[Biunno], 1991 Supreme Court Committee Comment & comment 3 on

N.J.R.E. 901 (2016).

We need not create a new test for social media postings.

Defendant argues a tweet can be easily forged, but so can a

letter or any other kind of writing. The simple fact that a

tweet is created on the Internet does not set it apart from

5
McCormick notes that Griffin "imposed a heavier burden of
authentication," but "[a]s with the advent of the telegraph, the
computer, and the internet," "the perceived need for this
additional burden may dissipate." McCormick on Evidence, supra,
§ 227, at 109-10.

12 A-5741-14T3
other writings. Accordingly, we apply our traditional rules of

authentication under N.J.R.E. 901.

Though in "electronic" form, a tweet is a "writing." See

N.J.R.E. 801(e). "The requirement of authentication of writings

. . . and the recognized modes of proving genuineness have been

developed by case law over two centuries." Biunno, supra,

comment 1 on N.J.R.E. 901 (2016). "Over the years

authentication requirements have become more flexible, perhaps

because the technology has become more commonplace." Suanez v.

Egeland, 330 N.J. Super. 190, 195 (App. Div. 2000).

N.J.R.E. 901 provides: "The requirement of authentication

or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the

matter is what its proponent claims." Authentication "'does not

require absolute certainty or conclusive proof' – only 'a prima

facie showing of authenticity' is required." State v. Tormasi,

443 N.J. Super. 146, 155 (App. Div. 2015) (quoting State v.

Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162

N.J. 132 (1999)). "This burden was not designed to be onerous."

State v. Hockett, 443 N.J. Super. 605, 613 (App. Div. 2016).

"'Courts are inclined to assess their role in

authentication as that of a screening process[,]' and 'will

admit as genuine writings which have been proved prima facie

13 A-5741-14T3
genuine . . . leaving to the jury more intense review of the

documents.'" Konop v. Rosen, 425 N.J. Super. 391, 411 (App.

Div. 2012) (quoting Biunno, supra, comment 1 on N.J.R.E. 901

(2011)). In a bench trial, as here, "considering the judge's

dual role with regard to its admission and weight, the better

practice in such a circumstance will often warrant the admission

of the document and then a consideration by the judge, as

factfinder." Tormasi, supra, 443 N.J. Super. at 156–57.

Authenticity can be established by direct proof – such as

testimony by the author admitting authenticity – but direct

proof is not required. Biunno, supra, comment 2 on N.J.R.E. 901

(2016); N.J.R.E. 903. "A prima facie showing may be made

circumstantially." Konop, supra, 425 N.J. Super. at 411. "Such

circumstantial proof may include demonstrating that the

statement 'divulged intimate knowledge of information which one

would expect only the person alleged to have been the writer or

participant to have.'" Ibid. (quoting Biunno, supra, comment

3(b) on N.J.R.E. 901 (2011)). Here, the tweet contained several

such details, including "shoe to ya face," information that one

would expect only a participant in the incident to have.6

6
In Konop, we cited with approval Kalola v. Eisenberg, 344 N.J.
Super. 198, 200 (Law Div. 2001), which found a threatening phone
call to the plaintiff dentist authenticated because the caller
"identified himself as the defendant, referenced the plaintiff
(continued)

14 A-5741-14T3
 Additionally, under the reply doctrine, a writing "may be

authenticated by circumstantial evidence establishing that it

was sent in reply to a previous communication." Mays, supra,

321 N.J. Super. at 629; see Biunno, supra, comment 3(c) on

N.J.R.E. 901 (2016). Here, Edwards testified that the tweet was

posted in response to her communications with defendant, as part

of a "back and forth" between them. Moreover, the tweet said

there was "[n]o need for me to keep responding to ya,"

apparently referring to Edwards who received a "shoe to ya

face."

Defendant's Twitter handle, her profile photo, the content

of the tweet, its nature as a reply, and the testimony presented

at trial was sufficient to meet the low burden imposed by our

authentication rules. Those facts established a prima facie

case "sufficient to support a finding that the matter is what

its proponent claims." N.J.R.E. 901. Other courts have

admitted tweets applying their similar authentication standard.

See Wilson v. State, 30 N.E.3d 1264, 1267-69 (Ind. Ct. App.

2015); Sublet v. State, 113 A.3d 695, 720-21 (Md. 2015); see

also 5 Weinstein's Federal Evidence: Discovering and Admitting

(continued)
and described the dental work previously performed." Konop,
supra, 425 N.J. Super. at 411-13.

15 A-5741-14T3
Computer-Based Evidence § 900.07[4A] (Joseph M. McLaughlin ed.,

2016).

Defendant argues the Law Division cited not only the

State's evidence but also defendant's testimony in the municipal

court that the tweet bore her picture associated with her

Twitter account. However, she cites no authority precluding the

Law Division from considering the uncontested fact that the

tweet bore defendant's photo and Twitter handle, which was

established through the testimony of Edwards as well as

defendant.

In the municipal court, defendant testified "[a]nybody can

make a fake Twitter page and put your name on it and put

something on there." She testified that because she deleted her

Twitter account months before, someone could have taken the same

Twitter handle and used it. After the municipal court did not

credit this claim, defendant tried to bolster her testimony by

submitting new evidence to the Law Division, including printouts

of Twitter policies showing that Twitter "is currently unable to

accommodate individual requests for inactive or suspended

usernames." The Law Division cited that policy as one of

several reasons for finding that defendant's testimony was not

credible and that she "did not actually delete her Twitter

16 A-5741-14T3
account and that she did, in fact, author and publish the Tweet

in question."

Defendant now argues it was improper for the Law Division

to rely on evidence that was not before the municipal court.

Notably, defendant herself presented the Twitter policies to the

Law Division and did not object to the court's consideration of

them. Therefore, she must show at least plain error. However,

she fails to show the court's consideration of the policies was

"clearly capable of producing an unjust result." R. 2:10-2.

There was ample other evidence supporting the court's decision

not to credit defendant's denial that she wrote and posted the

tweet.

The Law Division, like the municipal court, provided

sufficient reasons for finding the tweet authentic, relevant,

and admissible. Defendant's remaining arguments regarding

authentication lack sufficient merit to warrant discussion. R.

2:11-3(e)(2). Accordingly, we find no abuse of discretion in

admitting the tweet.

III.

The municipal court granted defendant's request for a

sequestration order at the start of trial. On appeal, defendant

argues for the first time that the order was violated when the

17 A-5741-14T3
State's witnesses were allowed to remain in the courtroom after

testifying.

N.J.R.E. 615 provides that, "[a]t the request of a party or

on the court's own motion, the court may, in accordance with

law, enter an order sequestering witnesses." "Its purpose is

'to prevent prospective witnesses from hearing what the other

witnesses detail in their evidence[.]'" State v. Williams, 404

N.J. Super. 147, 160 (App. Div. 2008) (emphasis added) (quoting

State v. Di Modica, 40 N.J. 404, 413 (1963)), certif. denied,

201 N.J. 440 (2010); see also Loigman v. Twp. Comm., 185 N.J.

566, 586 (2006) ("Sequestration of witnesses serves the salutary

purpose of ensuring that a witness who is testifying not

influence a witness who is about to testify.").

Here, allowing the witnesses to remain in the courtroom

after they testified "was no violation of a sequestration order

or insult to the purpose of sequestration." Williams, supra,

404 N.J. Super. at 160. Edwards was the first witness to be

examined by the State. After her testimony concluded, the

municipal court told Edwards she "could step down." Edwards

apparently remained in the courtroom without objection. Blake

then entered the courtroom, testified, and was allowed to remain

without objection. Neither Edwards nor Blake was recalled to

the stand.

18 A-5741-14T3
 Defendant argues Blake was coached by Edwards. However,

the record contains no evidence of Edwards coaching Blake.

Accordingly, defendant cannot show plain error. See id. at 160-

65; see also id. at 172-73 (Fisher, J.A.D., concurring); R.

2:10-2.

IV.

Lastly, defendant argues the municipal court drew an

adverse inference against her because she did not call the women

who were with her at the party to testify. The municipal court

stated: "I think the Court can draw some inferences from the

fact that there's reference to Ms. Hannah's sister [and two

other women] who [were] somewhere in the area . . . . And

they're not here to testify about anything." However, the Law

Division found that "the trial judge was not making an adverse

inference."

We need not review whether the municipal court did or could

draw such an inference because the Law Division itself declined

to draw such an inference. The Law Division stated: "Even if

this Court were to construe the trial judge's findings to

include an adverse inference, there is sufficient evidence in

the record to convict the defendant of simple assault without

the alleged adverse inference."

19 A-5741-14T3
 The Law Division "conduct[ed] a trial de novo on the record

below." R. 3:23-8(a)(2). A trial de novo in the Law Division

"provides a reviewing court with the opportunity to consider the

matter anew." State v. Kashi, 180 N.J. 45, 48 (2004) (citation

omitted). "A trial de novo by definition requires the trier to

make his own findings of fact." State v. Kashi, 360 N.J. Super.

538, 545 (App. Div. 2003) (quoting Ross, supra, 189 N.J. Super.

at 75), aff’d, 180 N.J. 45 (2004). "[T]he Superior Court judge

reviews the transcript and makes an independent determination of

the sufficiency of the evidence presented." Ibid. Here,

"[n]othing precluded the Superior Court judge from making his

own assessment of the sufficiency of the evidence contained

within the record." Ibid. The Law Division did so without

making the inference allegedly drawn by the municipal court.

Thus, defendant's argument solely "challenge[s] the actions

of the municipal court judge. However, appellate review of a

municipal appeal to the Law Division is limited to 'the action

of the Law Division and not that of the municipal court.'"

State v. Palma, 219 N.J. 584, 591-92 (2014) (citations omitted).

"For that reason, we do not consider defendant's arguments in

respect of the municipal court judge's actions." Ibid.

Affirmed.

20 A-5741-14T3