SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4858-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FIDEL HERNANDEZ,

Defendant-Appellant.

________________________

Submitted January 21, 2021 – Decided March 3, 2021

Before Judges Ostrer, Vernoia and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Municipal Appeal No. 13-

18.

Scott D. Finckenauer, attorney for appellant.

Esther Suarez, Hudson County Prosecutor, attorney 

for respondent (Stephanie Davis Elson, Assistant 

Prosecutor, on the brief).

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.
2

A-4858-18

Defendant appeals from a May 29, 2019 disorderly persons conviction 

for simple assault, N.J.S.A. 2C:12-1(a), following a trial de novo in the Law 

Division. We remand for further proceedings.

Defendant's conviction stems from an altercation with his alleged victim, 

Elvera Bland, at a block party in Jersey City on August 20, 2016. Bland's sister

Militinia,1 was one of the party's organizers. Following the altercation, Bland 

was taken by ambulance to the Jersey City Medical Center for treatment of a 

bite wound she reportedly sustained when defendant bit her upper arm. 

Additionally, after the police were called to the scene, Officer Albert Bower 

issued a complaint against defendant for disorderly conduct, N.J.S.A. 2C:33-

2. 

Due to a transfer in venue from Jersey City, as well as a prosecutorial 

conflict arising out of East Newark, this case was tried in the Guttenberg 

Municipal Court.2 The municipal judge considered the disorderly conduct 

charge filed by Officer Bower against defendant, as well as complaints for 

1

 We use Militinia Bland's first name in this opinion for the convenience of the 

reader and to avoid confusion. No disrespect is intended in this regard.

2

 We have not been provided with any transcripts from proceedings which may 

have occurred prior to the assignment of this case to the Guttenberg Municipal 

Court.
3

A-4858-18

simple assault filed by Bland and defendant against each other. The judge also 

addressed the harassment charges filed against defendant by Militinia, and two 

other attendees of the block party, Bruce Edwards and Deborah Alston.

3

 A 

private attorney prosecuted the complaints filed by Bland and Militinia against 

defendant and defended Bland against defendant's complaint. Defendant also

appeared with private counsel. 

Throughout the trial, several witnesses described the physical 

confrontation between Bland and defendant, and its aftermath. According to 

Officer Bower, he was dispatched to the scene of the block party based on a 

call that "a man . . . was being held down by neighbors after a dispute." Officer 

Bower stated that Bland reported "she had a verbal dispute with the alleged 

actor, which then turned into a confrontation, as she was, I believe, thrown on 

the floor and then bitten." Bland told the officer defendant was her attacker. 

Officer Bower was directed by Bland's neighbors to defendant's apartment, 

where he questioned defendant about the incident. According to the officer, 

defendant "appeared intoxicated" and looked "like he had just been in some 

sort of confrontation." The officer stated defendant "was red in the face" and 

3

 Additional cross-complaints were filed by other block party attendees against 

one another but are not relevant to the instant appeal. 
4

A-4858-18

"unable to respond to basic questions." Further, the officer observed defendant 

"smelled of alcoholic beverages." Referring to his incident report, Officer 

Bower noted defendant denied to the police that he had been drinking, and 

defendant claimed, "he was attacked by that bitch." Asked on redirect why 

only one party involved in the incident was charged by the police, Officer 

Bower answered, "[t]he aggressor was charged, I believe, that night." The 

officer further explained that before defendant was detained, a bystander,

Bruce Edwards, as well as Bland, informed him defendant was the aggressor

in the confrontation. Also, Officer Bower testified there was "[n]o doubt in 

[his] mind" defendant was visibly intoxicated before he was detained, but 

Bland did not appear to be intoxicated.

Bland testified that defendant's attack was "totally unprovoked" and that 

defendant "charged" at her, "like you would do in a football game. When 

somebody comes, and just tackles you." She explained: 

I stopped about 25 to 50 feet away from where 

[defendant] was. . . . I was standing there talking to 

the neighbor. I heard this loud noise with somebody 

saying, "fuck those Blands, . . . I'm taking them down." 

The crowd started laughing. And as I looked out of 

the corner of my eyes, I saw [defendant] running down 

toward me. He gets in front of me and stops. And 

that's when he charges me, and knocks me to the 

ground.
5

A-4858-18

It's at that point that the only thing I remember is . . .

like a sharp bite on my arm. And I'm trying to pull it 

away. And I could just feel the skin being pulled off 

my arm. Then there's a melee. And I notice somebody 

is trying to pull me from under him. 

And I see people that are holding him. And every time 

they grab him, I'm terrified because he keeps lunging 

back down, trying to get me while I'm still struggling 

to get off the ground.

Bland confirmed that during the attack, defendant "was banging [her] head 

against the ground." She further affirmed she was taken by ambulance to 

Jersey City Medical Center for treatment of the bleeding bite wound on her 

arm. She testified it "looked like a shark bite," adding, "you could see the 

whole impression of a mouth on my arm." 

Militinia also testified at the hearing. She stated that as the party's 

organizers were shutting down the block party and cleaning up, defendant ran 

toward her sister and knocked her to the ground. She stated:

So [defendant]'s in the middle of the street. He runs to 

the sidewalk, which would be across the street. Then 

he pivots, and I see him take off. . . . And then I see 

him run into someone, and they fall. 

As Militinia moved toward the area where the brawl ensued, she realized 

"[t]here was nothing [my sister] could do. She was doing nothing. She was 

being beaten." Militinia attested that she and several neighbors tried to 
6

A-4858-18

intervene, and she saw her sister's arm was bleeding. She also recalled seeing 

defendant spitting and shouting, "I'm going to kill the bitch." Using a racial 

epithet, he said, "we hate you mother f—kers" and they "should die." 

Edwards testified that on the day of the block party, defendant was 

standing in a crowd, yelling degrading terms and making "disparaging 

remarks." He saw defendant run over to Bland and knock her over as the crowd 

cheered. Edwards attested:

As I was walking to him, [defendant] flopped on top 

of [Bland]. 

. . . .

And . . . then . . . there was an intermingling of them. 

And I pulled him off. I came down, and pulled him 

off. And that's when the rest of the crowd came. And 

he got up cursing, and – and calling all kind of names.

Edwards confirmed Bland did not hit defendant or hurt defendant in any way.

Alston testified defendant was drinking throughout the day. She saw 

defendant "knock [Bland] to the ground and jump on top of her and attack her,

. . . swinging and punching her." She stated Bland did not address defendant 

in any way or call out to him before the attack. 
7

A-4858-18

Defendant described the incident differently when he testified. He 

admitted he was drunk at the block party but denied using the racial slurs 

mentioned by other witnesses. He stated:

As I'm heading back towards my area, I come in 

contact with [Bland] who comes out of nowhere. The 

next thing that I know she says something to me, she 

grabs me by the T-shirt as she's making this small 

wailing sound. 

. . . . 

So she knocks me to the ground and starts clawing my 

face . . . . So, I have all the pictures of the evidence of 

my wounds that I sustained that day at the hands of 

[Bland]. I know that the narrative is where the male 

attacks the female, and we have heard three accounts 

of the same thing. We have heard that I ran to her and 

tackled her down. We have heard . . . I knocked her 

down, and was beating her, yet I – I know that didn't 

happen.

Defendant testified he tried to push Bland away and felt "her nails as she 

was just tearing [his] skin," so the "only thing" he "could do was bite her." He 

stated Bland was led away while he was "left on the ground with blood coming 

out of [his] eye." Defendant attested he retreated to his house, followed by 

several people, to clean up and care for his wounds. Shortly thereafter, the 

police arrived, asked him what happened, and arrested him. 
8

A-4858-18

Defendant's roommate, Glenn Trickel, testified that Militinia was upset 

there was a large crowd by their stand during the party. Regarding the 

confrontation between defendant and Bland, he recalled:

. . . I'm hearing eeeeh. I look over, and I see 

[defendant] on the ground on his back, and I go over 

there immediately. And his eye is covered in blood, 

and there's blood coming down the side of his face, and 

I went, oh, my God. What the hell happened?

The municipal judge found Bland not guilty of the simple assault charge 

filed by defendant; she also found defendant not guilty of the harassment 

charges filed by Edwards, Alston, and Militinia, and not guilty of the disorderly 

conduct charge lodged by Officer Bower. However, on the remaining simple 

assault charge filed by Bland against defendant, the judge concluded: 

I find the defendant guilty of simple assault. I find that 

he knocked . . . Bland down. She's 63 years old. By 

knocking her to the ground, I find that he, in fact, did 

bite [Bland], causing the skin to break and causing an 

injury to [Bland], when not provoked by [Bland]. 

Therefore, I find the defendant is guilty of simple 

assault.

 

On June 14, 2018, defendant appealed from his conviction to the Law 

Division. The Law Division judge remanded the case to the municipal judge, 

requesting that she supplement the trial record with her credibility findings on 

the trial witnesses. On October 30, 2018, the municipal judge supplemented 
9

A-4858-18

the record to include her credibility findings, and credited Militinia's testimony 

that defendant ran towards Bland before "knocking her to the ground, getting 

on top of her, punching her, and biting her." The judge also concluded several 

block party attendees held defendant down after he was pulled off Bland. 

Further, the judge believed Bland's testimony that defendant ran towards her, 

knocked her to the ground, that she felt her skin pull from her arm, and needed 

medical treatment for the bite. The judge also found the testimony of Officer 

Bower, Alston and Edwards credible. 

On the other hand, the municipal judge found that although defendant 

testified truthfully about serving wine at the block party and that he had too 

much to drink that day, he was not truthful when he denied using profanity 

during the altercation and when he testified that Bland instigated the assault. 

Once the municipal judge amplified her findings, defendant's appeal 

proceeded in the Law Division. Oral argument was held in Superior Court on 

February 28, 2019. Neither Bland's nor defendant's private counsel appeared 

at this proceeding; instead, an assistant prosecutor from the Hudson County 

Prosecutor's office appeared for the State and defendant appeared pro se. 

Defendant argued there was a lack of evidence to support his simple assault 

conviction. 
10 A-4858-18

On May 29, 2019, following his de novo review of the matter, the Law 

Division judge found defendant guilty of simple assault. The judge determined 

that defendant was not the victim of a "vicious and unprovoked attack," but

instead, the State proved beyond a reasonable doubt defendant assaulted 

Bland.4

On the instant appeal, defendant raises the following arguments:

POINT ONE

THE LOWER COURTS FAILED TO FOLLOW 

RULE 7:8-7(b) IN PERMITTING ELVERA 

BLAND'S DEFENSE ATTORNEY TO PROSECUTE 

HER SIMPLE ASSAULT COMPLAINT AGAINST 

THE DEFENDANT. (Not raised below).

POINT TWO

THE LAW DIVISION FAILED TO CONCLUDE 

THAT THE STATE PROVED BEYOND A 

REASONABLE DOUBT THAT THE DEFENDANT

DID NOT ACT IN SELF-DEFENSE, OR, 

ALTERNATIVELY, IT ERRED IN CONCLUDING 

THAT THE STATE PROVED BEYOND A 

REASONABLE DOUBT THAT THE DEFENDANT 

HAD NOT ACTED IN SELF-DEFENSE.

As a threshold matter, we recognize a Law Division judge reviews a 

municipal court appeal de novo on the record. R. 3:23-8(a)(2). The trial court 

4

 We do not address the Law Division's other findings because they are unrelated 

to the issues raised on appeal.
11 A-4858-18

must make independent "findings of fact and conclusions of law but defers to 

the municipal court’s credibility findings." State v. Robertson, 228 N.J. 138, 

147 (2017). We review a de novo conviction by the Law Division following a 

municipal court appeal "exceedingly narrow[ly]." State v. Locurto, 157 N.J. 

463, 470 (1999). In our review of the Law Division's decision on a municipal 

appeal, "[w]e review the action of the Law Division and not that of the 

municipal court." State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 

2011) (internal quotation marks and citations omitted). Unlike the Law 

Division, we do not independently assess the evidence. Locurto, 157 N.J. at 

471-72. Instead, we consider "whether the findings made could reasonably 

have been reached on sufficient credible evidence present in the record." State 

v. Stas, 212 N.J. 37, 49 (2012) (quoting Locurto, 157 N.J. at 471).

The rule of deference is more compelling here, where the municipal and 

Law Division judges made concurrent findings. Locurto, 157 N.J. at 474.

"Under the two-court rule, appellate courts ordinarily should not undertake to 

alter concurrent findings of facts and credibility determinations made by two 

lower courts absent a very obvious and exceptional showing of error." Ibid.

(citation omitted). However, "[a] trial court’s interpretation of the law and the 

legal consequences that flow from established facts are not entitled to any 
12 A-4858-18

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995). 

Guided by these principles, we would have little difficulty affirming 

defendant's conviction, were it not for the Rule 7:8-7 argument he raises in 

Point I. However, we are constrained to remand this matter to the Law Division 

to determine whether the dictates of Rule 7:8-7 were followed. If there are 

disputed facts regarding compliance with the rule, an evidentiary hearing 

should be held. In the event the remand court finds there was compliance with 

Rule 7:8-7, defendant's conviction shall be affirmed; if not, contrary to the 

State's position, defendant's conviction must be vacated in favor of a new trial

with the appropriate prosecuting attorney. Thus, to the extent we address 

defendant's argument in Point II, we are mindful our comments are of no 

consequence should the remand result in a vacatur of defendant's conviction. 

In the seminal case of State v. Storm, our Supreme Court held that 

allowing a private prosecution in the municipal court facilitates access to the 

courts. 141 N.J. 245, 251 (1995). Nevertheless, the Storm Court urged the 

Committee on Municipal Courts to provide guidelines for when a judge should 

permit the appointment of private prosecutors, and what factors should be 

considered. Id. at 255. The Storm Court also concluded that if the municipal 
13 A-4858-18

prosecutor insists on prosecuting a case, then that decision should be final. 

Ibid. However, "[i]n all other cases, the private attorney should disclose in a 

written certification all facts that foreseeably may affect the fairness of the 

proceedings." Ibid.

In response, Rule 7:8-7(b) was adopted, which states:

The municipal prosecutor, municipal attorney, 

Attorney General, county prosecutor, or county 

counsel, as the case may be, may appear in any 

municipal court in any action on behalf of the State 

and conduct the prosecution either on the court's 

request or on the request of the respective public 

official. The court may also, in its discretion and in 

the interest of justice, direct the municipal prosecutor 

to represent the State. The court may permit an 

attorney to appear as a private prosecutor to represent 

the State in cases involving cross-complaints. Such 

private prosecutors may be permitted to appear on 

behalf of the State only if the court has first reviewed 

the private prosecutor's motion to so appear and an 

accompanying certification submitted on a form 

approved by the Administrative Director of the Courts.

The court may grant the private prosecutor's 

application to appear if it is satisfied that a potential 

for conflict exists for the municipal prosecutor due to 

the nature of the charges set forth in the crosscomplaints. The court shall place such a finding on 

the record.

[Emphasis added.]

The failure of a municipal court to enforce the requirements of Rule 7:8-

7(b) renders a defendant's conviction void ab initio. State v. Myerowitz, 439 
14 A-4858-18

N.J. Super. 341, 359 (App. Div. 2015). "A plain reading of R[ule] 7:8-7(b)

does not permit an interpretation that its application is discretionary. The rule 

does not state that a private prosecutor 'may' submit such a certification or that 

the municipal judge 'may' review it." State v. Valentine, 374 N.J. Super. 292, 

297 (App. Div. 2005). 

A private attorney may be permitted to prosecute only if the court 

reviews the certification, makes a ruling, and grants the motion "for good cause 

shown." Ibid. As we have noted:

the first step under Rule 7:8-7(b) requires the 

municipal court judge to determine whether the parties 

have filed cross complaints against each other. In such 

a scenario, the municipal prosecutor is placed in an 

untenable situation because each party is a defendant 

in one case and a complaining witness in the other.

. . . .

In the absence of actual cross-complaints that create 

an insurmountable conflict of interest for the 

prosecutor, there are no legal grounds for the 

municipal court to permit a private attorney to 

represent the State.

. . . .

The second step under Rule 7:8-7(b) requires the 

municipal court to review the private attorney's motion 

to assume the role of prosecutor. This motion must be 

accompanied by a "certification submitted on a form 
15 A-4858-18

approved by the Administrative Director of the 

Courts." 

[Myerowitz, 439 N.J. Super. at 356 (quoting R. 7:8-

7(b)).]

"The overarching argument against private prosecutors is the risk they 

pose to a defendant's right to a fair trial." Storm, 141 N.J. at 252 (citing State 

v. Kinder, 701 F.Supp. 486, 489 (D.N.J. 1988)). Prosecutors, who represent 

the State, and private attorneys, who represent people, have different 

responsibilities that may often conflict. Compare RPC 1.2 with RPC 3.8. 

Problems arise when a private prosecutor has responsibilities both to a 

complaining witness and to the State. Storm, 141 N.J. at 252. The prosecutor, 

like the judge, must be impartial. Id. at 254. Ultimately, however, "[i]n 

adopting R[ule] 7:8-7(b), the Court lodged the obligation to insure the 

impartiality of private prosecutions, in the first instance, with municipal 

judges." Valentine, 374 N.J. Super. at 295. 

Although we were provided with several transcripts in this matter, the 

earliest transcript in the record is dated November 30, 2016, the date the parties 

first appeared in Guttenberg Municipal Court, following the transfers from two 

other municipal courts. Thus, it is unclear whether any municipal court 

involved in this matter before November 30, 2016 ensured that private counsel 
16 A-4858-18

filed a motion to assume the role of prosecutor and provided the required 

certification under the rule. We also have no indication any municipal court 

granted Bland's attorney leave to prosecute the case against defendant. 

Accordingly, this matter must be remanded for a hearing on these issues.

Regarding Point II, if the remand judge determines the requirements of 

Rule 7:8-7(b) were fulfilled, we are satisfied there is substantial credible 

evidence in the record to support the Law Division judge's findings that 

defendant was not acting in self-defense. Pursuant to N.J.S.A. 2C:3-4(a), the 

use of force is justifiable for the protection of a person if "the actor reasonably 

believes that such force is immediately necessary for the purpose of protecting 

himself against the use of unlawful force by such other person on the present 

occasion." There must be an "actual belief in the necessity of using force" and 

such belief must be reasonable. State v. Urbina, 221 N.J. 509, 525 (2015) 

(quoting State v. Kelly, 97 N.J. 178, 198-99 (1984)).

Here, the Law Division judge found defendant was not defending himself 

from a "vicious and unprovoked attack." In conducting his de novo review and 

giving "due deference to [the municipal judge's] credibility findings," the Law 

Division judge determined: 

Four witnesses testified that they observed [defendant] 

yell profanities, charge across the street, and knock 
17 A-4858-18

someone down. Three witnesses testified that the 

person [defendant] knocked down was [Bland]. Four 

witnesses testified that they saw [defendant] punching 

Bland on the ground. Four witnesses testified that they 

saw blood coming from [Bland]'s arm. Bland testified 

that [defendant] bit her in the arm, and that she sought 

medical treatment as a result of her injury. The 

evidence clearly demonstrates that [defendant] was not 

the victim of a "vicious and unprovoked attack." . . . 

Rather, the evidence establishes beyond a reasonable 

doubt that appellant was guilty of simple assault on 

[Bland].

There is ample evidence in the record to support the judge's finding that 

defendant was the aggressor in the incident and that he did not act in selfdefense when he bit Bland. We perceive no basis to disturb the Law Division 

judge's findings. 

To the extent we have not addressed any of defendant's remaining 

arguments, they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2).

Remanded for further proceedings consistent with this opinion. We do 

not retain jurisdiction.