Court failed to properly advise defendant of right to counsel














Argued January 20, 2009 — Decided


Before Judges Reisner, Sapp-Peterson and Alvarez.


On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4649.


Steven Stadtmauer argued the cause for appellant (Celentano, Stadtmauer & Walentowicz, L.L.P., attorneys; Mr. Stadtmauer, on the brief).


Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the brief).



Defendant, Jay DiMatteo, appeals his conviction of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(c). Defendant was sentenced in municipal court to thirty days jail time, placed on probation with conditions for a year, fined $500, and required to pay mandatory costs and penalties. On his appeal to the Law Division, pursuant to Rule 3:23, defendant was again found guilty following a trial de novo. The sentence was modified to credit for fifteen days served, a year’s probation with conditions, a reduced fine of $250, and costs. We reverse and remand for a new trial.

Defendant was charged by Kelly Miller with forwarding unwanted flowers on two occasions and sending unwanted love letters. Kelly alleged that defendant was essentially stalking her, and that his conduct constituted harassment within the meaning of the statute. On August 16, 2006, a first appearance was conducted on the complaint.

At a first appearance in municipal court, pursuant to Rule 7:3-2, a defendant is to be informed of the pending charges, provided with a copy of the complaint if not previously supplied, and advised of the right to remain silent. “The judge shall [also] inform the defendant of the right to retain counsel or, if indigent, to have counsel assigned.” R. 7:3-2. The rule goes on to state that the defendant shall be “specifically asked whether legal representation is desired,” and his or her response is to be recorded on the complaint. The rule is basically identical to the procedure employed on a first appearance on indictable matters. Pressler, Current N.J. Court Rules, comment on R. 7:3-2 (2009).

Defendant, who appeared pro se, entered into the following colloquy with the court:

[THE COURT]: All right. Are you going to get an attorney?


[DEFENDANT]: No. I’m not going to get an attorney. I could, but I’m going to handle the case myself.


[THE COURT]: I would — — I want to just go on the record that this is a serious charge and depending on the outcome of this charge you could go to jail.


[DEFENDANT]: I understand that, Your Honor.


[THE COURT]: So, you know, in the middle of this you can’t just say, well, I don’t like the way this is going — — and I haven’t prejudged this in any way. Don’t get me wrong. But, you know, you’re not an attorney.


[DEFENDANT]: I — — well, I’ll leave that up to me. If I come — — if I come with an attorney, I’ll have [an] attorney. If not, I’ll — — I won’t have an attorney.


[THE COURT]: All right. I’m going to give you — —


[COMPLAINANT]: Your Honor, can I say — —


[THE COURT]: I’m sorry.


[COMPLAINANT]: Can I say something?


[THE COURT]: Sure.


[COMPLAINANT]: This has been going on since 2002. I have postponement after postponements. I mean — —


[THE COURT]: I don’t doubt you at all. I don’t doubt you at all, but this is — —


[COMPLAINANT]: I mean, I feel like — —


[DEFENDANT]: Your Honor.


[COMPLAINANT]: — — I’m going in circles here.


[THE COURT]: You’re not. This is the first time this is before me. Okay. You have one adjournment.




[THE COURT]: And I’m setting this down for a special session, where this case is going to be resolved in one session, and that will be the end of it. There will be no further adjournments. Okay.


. . . .


[DEFENDANT]: Your Honor, if I come with an attorney, I’ll have any attorney. If I don’t have an attorney — but I believe I will win the case.


. . . .


[DEFENDANT]: If I have an attorney. Like I said, if I have an attorney, I’ll have him. If don’t have it — —


[THE COURT]: Right. That’s up to you. Okay.


[DEFENDANT]: Okay. Thank you very much, Your Honor.


It is reversible error to fail to advise a defendant adequately of his right to counsel because incarceration is a consequence of magnitude. State v. Gonzalez, 114 N.J. 592, 608 (1989). A petty disorderly persons offense is punishable by up to thirty days in county jail, in addition to a $500 fine. N.J.S.A. 2C:43-8 and 2C:43-3(d). Although defendant was told that he had the right to return to court for trial with an attorney, and that he faced the possibility of incarceration, neither his right to counsel nor the possibility of jail time was explained.

Defendant was not told that if he could not afford an attorney, one would be assigned to represent him. Similarly, it was not explained to him that the possible incarceration term was up to thirty days. In fact, defendant was jailed for fifteen days by the municipal court immediately upon the sentence being pronounced until the Law Division stayed the sentence pending the trial de novo in that court. Without this information, defendant could not have made a knowing, intelligent and voluntary waiver of his right to counsel.

Defendant contends that the municipal court’s failure to advise him adequately of his right to counsel is error. This omission, however, was not raised before the Law Division judge. Accordingly, we consider the argument pursuant to the plain error doctrine. R. 2:10-2. Only where an error is “clearly capable of producing an unjust result” must the judgment be reversed. Ibid. The possibility of an unjust result arising from the error must be “sufficient to raise a reasonable doubt as to whether the error led the [fact-finder] to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).

We are satisfied that an error capable of producing an unjust result occurred when defendant waived his Sixth Amendment right to counsel prior to the municipal court trial. See State v. Abbondanzo, 201 N.J. Super. 181, 184 (App. Div. 1985). He did not know that he had the right to assigned counsel. He did not know the extent of the jail time that could be imposed after conviction. Because he was not fully informed of his options or the potential consequences of a conviction, he simply did not make a knowing and intelligent waiver.

As “a matter of simple justice,” a defendant must have the opportunity to engage counsel prior to a proceeding that may result in a consequence of magnitude, such as incarceration. Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971). The oversight is particularly problematic in this case where the record discloses that defendant was experiencing employment difficulties and may have been eligible for assigned counsel. Furthermore, our review of the record also indicates that defendant may have some significant mental health issues, as established by the nature of the charges and his conduct during the first appearance and the municipal court trial. It is noteworthy that both trial judges made a mental health evaluation, as well as compliance with any recommended treatment, a condition of probation.

A “searching and painstaking inquiry” is required before a waiver of counsel occurs “when a pro se defendant may be jailed following conviction.” Abbondanzo, supra, 201 N.J. Super. at 184-85. The municipal court judge’s failure to conduct any meaningful inquiry, much less a “searching and painstaking inquiry,” into defendant’s waiver of counsel is an error clearly capable of producing an unjust result. Id. at 184. Accordingly, the conviction is vacated, and the matter is remanded for a new trial.

Reversed and remanded.

April 14, 2009


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