RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3596-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.C.,

Defendant-Appellant.

_____________________________

Argued telephonically May 4, 2020 –

Decided June 25, 2020

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Municipal Appeal No. 19-

16.

Kimberly A. Yonta, argued the cause for appellant.

Natacha Despinos-Peavey, Assistant Prosecutor, 

argued the cause for respondent (Michael H. Robertson, 

Somerset County Prosecutor, attorney; Natacha 

Despinos-Peavey, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.
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A-3596-18T1

Following her conviction in municipal court for simple assault, N.J.S.A. 

2C:12-1(a)(1), defendant M.C. appealed and was found guilty by the Law 

Division judge after a trial de novo. She appeals from that conviction, reprising 

arguments related to a video recording, purporting to show the assault, that she 

contends her trial counsel did not receive until the day of the municipal court 

trial and which she never reviewed with counsel:

POINT I

[DEFENDANT'S] CONVICTION SHOULD BE 

REVERSED BECAUSE THE MUNICIPAL COURT 

ERRED BY ALLOWING THE TRIAL TO MOVE 

FORWARD VIOLATING [DEFENDANT'S] RIGHT 

TO A FAIR TRIAL. 

POINT II

THE LAW DIVISION FAILED TO RECOGNIZE THE 

VIOLATION OF [DEFENDANT'S] RIGHT TO A 

FAIR TRIAL BASED UPON THE VIOLATION OF R.

7:7-7.

A. The Law Division failed to recognize 

and remedy the discovery violation.

B. The Law Division did not properly find 

[defendant] guilty of simple assault 

because the credibility of the testimony at 

the trial was tainted. 

We affirm.
3

A-3596-18T1

We review the Law Division's decision following a municipal 

appeal, "consider[ing] only the action of the Law Division and not that of the 

municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). 

"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." State v. 

Locurto, 157 N.J. 463, 474 (1999). Rather, this court’s sole function is to 

"'determine whether the [Law Division’s de novo] findings . . . could reasonably 

have been reached on sufficient credible evidence present in the record,' 

considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. 

Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We review the 

Law Division judge's legal conclusions, however, de novo. See State v. Rivera, 

411 N.J. Super. 492, 497 (App. Div. 2010).

The Law Division judge considered two certifications submitted by the 

private prosecutor1and one by defendant's trial counsel. In the prosecutor's first 

certification, he averred he forwarded the video—showing the altercation 

between defendant and the father of her child as they met in a police station 

1

 Defendant was issued a citizen's complaint. The complainant was, in fact, 

arrested after the altercation. His case is not before this court.
4

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parking lot to effect a court-ordered exchange of their daughter—to trial 

counsel's Yahoo email account on November 21, 2018. Both the prosecutor and 

trial counsel agree in their certifications that on December 4, 2018, the 

municipal court trial date, trial counsel advised the prosecutor he did not receive 

the video. The prosecutor certified he re-sent it to trial counsel on the trial date, 

and that trial counsel "reviewed it with his client and . . . did not indicate any 

problem receiving the email." Trial counsel certified he "was able to view the 

video on his cell phone just before trial, but . . . was not able to review the video 

with [his] client before trial." When defendant's appellate counsel argued to the 

Law Division judge that defendant did not view the video with her trial counsel, 

the judge requested "that we get some documentation from the State" to "see 

whether or not [the private prosecutor] will further certify how he knew 

[defendant] viewed it." 

In a second certification, the prosecutor said he "observed [trial counsel 

and defendant] at a display case outside the courtroom[,] and they appeared to 

be looking at his phone." In concluding "[t]he State . . . properly compl[ied]

with its discovery obligations . . . under [Rule] 7:7-7," the Law Division judge 

credited the private prosecutor's certifications finding the prosecutor sent trial 
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counsel an email containing a link to the video, and twice certified that trial 

counsel "receiv[ed] the video and review[ed] it with [d]efendant." 

It is undisputed that trial counsel sent a request for discovery on October 

26, 2018. The November 21, 2018 email containing the link to the video did not 

timely comply with Rule 7:7-7(g), which provides "[t]he [private] prosecutor 

shall respond to [a defendant’s] discovery request . . . within [ten] days after 

receiving the request." 

Moreover, the certifications revealed disputes whether trial counsel 

received the prosecutor's first email and whether counsel reviewed the video 

with defendant. The Law Division judge should not have resolved contested 

issues of material facts on the basis of conflicting certifications. See State v. 

LaResca, 267 N.J. Super. 411, 419 (App. Div. 1993). When the resolution of a 

material issue rests on opposing certifications, a "[d]efendant ha[s] a right to an 

evidential hearing on the contested issue[]." Ibid. ("If the . . . judge found some 

[conflicting] evidence in the certifications, he should have scheduled a plenary 

hearing"); see also Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 25-26 (2004).2 

2 Defendant also asserts that the State violated Rule 7:7-7(b)(1) because the 

appellate prosecutor conceded during oral argument before the Law Division 

that she could not open the link to the video allegedly sent to defendant’s trial 

attorney; as such, defendant claims the private prosecutor did not provide the 
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The Law Division judge should have conducted an evidentiary hearing to 

resolve the conflicting issues presented in the certifications. 3

Even if the video was provided on the date of trial, we discern from the 

municipal court record that trial counsel, after he watched the video just prior to 

trial, elected to proceed without raising an objection regarding the discovery 

violation. We first note trial counsel made no application—indeed, no 

mention—of the late-provided discovery when the trial began. It was not until 

he was about to begin cross-examination of the complainant that he raised the 

issue:

video in a "reasonably usable form," as required by the Rule. This argument has 

been waived, however, because defendant did not raise it at the trial level. State 

v. Galicia, 210 N.J. 364, 383 (2012) ("[A]n appellate court will not consider 

issues, even constitutional ones, which were not raised below."). Moreover, the 

claim is belied by the record: Trial counsel claimed he did not receive the email 

containing the video link; he never claimed that he received a deficient link or 

had trouble viewing the video. 

3

 Another issue that required a plenary hearing for resolution was raised by the 

private prosecutor's statements in both certifications that "[o]n November 21, 

2018 [his] office forwarded a video . . . of the incident in this matter to [trial 

counsel] at Wieslawski@yahoo.com." (Emphasis added). "Exhibit A," attached 

to both of the prosecutor’s certifications, contains a copy of the November 2018 

email containing a link to the video which was allegedly sent to defendant’s trial 

counsel a week before trial. Trial counsel’s email, listed in the address line of

the November email is spelled wieslawkrajewski@yahoo.com. (Emphasis

added), lending support to trial counsel's averment that he did not receive the 

video until the trial date.
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[TRIAL COUNSEL]: Your Honor, before I start crossexamination, I – basically, I sent a letter to [the private 

prosecutor] on October 26[] requesting [a] copy of the 

[video]. I only got black and white pictures. I never 

got the tape. So that’s 

[THE COURT]: I thought we said beforehand that you 

already saw the video?

[TRIAL COUNSEL]: I am sorry.

[THE COURT]: Didn’t we just have a conference 

beforehand and it was told to me everybody saw the 

video[?]

[TRIAL COUNSEL]: Yes. I mean he presented the 

video to me today. So, he – I just saw with on his phone 

today. But prior to that I never had a chance to even –

[THE COURT]: But you saw the video today. Correct?

[TRIAL COUNSEL]: Yes.

[THE COURT]: Okay.

Defendant now contends the municipal court judge "did not let defense 

counsel finish his statement." We do not see any support for that contention in 

the record. Trial counsel did not request a continuance to allow more time to 

review the video, review the video with defendant, or garner evidence to refute 

the video. Nor did he seek to bar introduction of the video into evidence or any 

other appropriate relief. Trial counsel merely commenced cross-examination of 

the complainant.
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In fact, at the conclusion of that cross-examination, the State moved the 

video into evidence. The municipal court judge asked trial counsel if he had any 

objection. Trial counsel responded, "[n]o," and the video was entered into 

evidence as a joint exhibit. Trial counsel could have interposed an objection to 

the video at that time. He did not. Our review of the municipal court 

proceedings, both before and after the municipal appeal,4 does not disclose any 

point where the municipal court judge prevented counsel—either trial counsel 

or appellate counsel who appeared at the resentencing proceeding—from 

addressing the court.

We reject defendant's argument that the municipal court judge was 

obligated to stop proceedings and grant a continuance to allow defendant to view 

the video. Rule 7:7-7(j) provides:

If at any time during the course of the proceedings it is 

brought to the attention of the court that a party has 

failed to comply with this [discovery] rule or with an 

order issued pursuant to this rule, the court may order 

that party to provide the discovery of materials not 

previously disclosed, grant a continuance, prohibit the 

party from introducing in evidence the material not 

disclosed or enter such other order as it deems 

appropriate.

[(Emphasis added).]

4

 The Law Division judge remanded the case for resentencing.
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The Rule requires counsel to bring a discovery violation to the court's 

attention and seek relief under the Rule. See State v. Stein, 225 N.J. 582, 586 

(2016). Once brought before the court, it can determine the best remedy, 

considering 

(1) whether the [violating] party . . . intended to 

mislead; and (2) whether the aggrieved party was 

surprised and would be prejudiced by the admission of 

[the evidence]. State v. LaBrutto, [114 N.J. 187, 205 

(1989)]; see also Pressler & Verniero, Current N.J. 

Court Rules, [cmt. on] R. 3:13-3 (2011) ("The State's 

failure to comply with the requirement . . . will not 

preclude the [evidence] if defendant is not thereby 

prejudiced."). "Prejudice" in this context refers not to 

the impact of the [evidence] itself, but the aggrieved 

party's inability to contest the [evidence] because of 

late notice.

[State v. Wolfe, 431 N.J. Super. 356, 363 (App. Div. 

2013) (fourth and sixth alterations in original) (quoting 

State v. Heisler, 422 N.J. Super. 399, 415 (App. Div. 

2011)).]

Absent an objection, and in light of trial counsel's consent to the admission 

of the video as a joint exhibit, that trial strategy is not subject to review here. 

We do not know why trial counsel decided to proceed with the trial without a 

continuance and consent to the admission of the video. The appellate prosecutor 

informed the Law Division judge the duration of the video was eight minutes 
10 A-3596-18T1

and forty-five seconds.5 Inasmuch as counsel reviewed the video before trial, 

he could have determined a continuance was not required to effectively defend 

the case without viewing it with defendant. Further, defendant's contention that 

trial counsel never had an opportunity to effectively cross-examine the 

complainant involves facts outside the record. Setting aside that counsel viewed 

the video prior to cross-examining the complainant, defendant does not point to 

anything in the video that would have aided cross-examination. Nor does she 

indicate how a review of the video with her would have aided counsel's crossexamination.

Because the reasons for counsel's decisions lie outside the trial record, we 

"routinely decline to entertain ineffective-assistance-of-counsel claims on direct 

appeal[.]" State v. Hess, 207 N.J. 123, 145 (2011). "[T]he record is inadequate 

to disclose what reasons of tactics and strategy motivated counsel" not to make 

any argument. State v. Dixon, 125 N.J. 223, 261-62 (1991). Thus, a PCR 

"proceeding would be the appropriate forum to evaluate the strategy of 

defendant's trial counsel . . . ." State v. McDonald, 211 N.J. 4, 30 (2012).

5

 The video is not part of the appellate record; nor was it part of the record 

considered by the Law Division.
11 A-3596-18T1

Nevertheless, excluding the video evidence, the Law Division judge found 

sufficient evidence from the testimony and photographic evidence to find the 

State met its burden of proving the elements of simple assault beyond a 

reasonable doubt. We agree with the judge's findings that are supported by 

competent evidence.

The complainant testified the parties' daughter did not want to go with 

defendant, and he was trying to calm the child while twice telling defendant to 

"get away" because their daughter was "[v]ery scared of her. Frightened." He 

said defendant "just came over and just hurt us" the third time she approached. 

He described defendant's actions:

Her hands were all over me. She was hitting me. It felt 

like I was just being attacked every which way. I was 

just holding on to my child and trying to run.

[PROSECUTOR]: So your child was in your arms and 

she came over, you said her hands were all over you. 

You need to be specific. Her hands were touching what 

parts of you?

[COMPLAINANT]: Right here.

[PROSECUTOR]: For the record[,] you are indicating 

around your left elbow.

[COMPLAINANT]: Yeah, right here, where she 

grabbed it here.

[PROSECUTOR]: Okay.
12 A-3596-18T1

[COMPLAINANT]: And got away like this.

[PROSECUTOR]: I am sorry. You what?

[COMPLAINANT]: She grabbed here, tried to pull my 

arm out of the – for the child – trying to drop my child, 

then dropped. 

[PROSECUTOR]: Did she then grab you again?

[COMPLAINANT]: Yes.

[PROSECUTOR]: And where did she grab you the 

second time?

[COMPLAINANT]: I believe it was – tried to get my 

arms away from me.

. . . .

[PROSECUTOR]: So you know she grabbed your left 

elbow and you are just not sure what else?

[COMPLAINANT]: Yeah. I just –

[PROSECUTOR]: Did you suffer –

[COMPLAINANT]: – bruises.

He also testified that he suffered pain in and bruising to his left hand, lower back 

pain, and "bruising – [a] red mark" to his left forearm from defendant's actions. 
13 A-3596-18T1

He also produced photographs of the visible bruising.6 The Law Division judge 

described the injuries depicted in the photographs including the complainant's 

"swollen, bruised hand, injury to [his] back, and visible bruising to [his] left 

forearm." Defendant does not dispute these findings.7

Defendant testified she told the complainant that she was "going to come 

grab [their daughter] right now. . . . [She] let him know that clearly." She 

continued: "And if I had touched him, I am sorry. It was intentional. But I was 

trying to get my daughter into my custody . . . ." She later conceded 

"[i]ntentionally, [she] might have, you know, like tried to get [their daughter] so 

maybe [she] did touch him."

The Law Division judge, in finding defendant guilty of simple assault,

concluded defendant, in an attempt to get her child "by any means necessary" 

instead of seeking intervention from the police in whose parking lot the 

exchange took place, was a "gross deviation from the standard conduct that a 

reasonable person would have assumed in [her] situation."

6

 Defendant does not dispute that the photographs were provided with pre-trial 

discovery.

 

7

 The photographs were not included in the appellate record.
14 A-3596-18T1

A defendant commits a simple assault if she or he "purposely, knowingly 

or recklessly causes bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1). A 

defendant acts "recklessly" for purposes of the crime if she or he

consciously disregards a substantial and unjustifiable 

risk that . . . [her or his conduct could cause bodily 

injury to another] or [bodily injury] will result from 

[her or his] conduct. The risk must be of such a nature 

and degree that, considering the nature and purpose of 

the actor's conduct and the circumstances known to the 

actor its disregard involves a gross deviation from the 

standard of conduct that a reasonable person would 

observe in the actor's situation. One is said to act 

recklessly if one acts with recklessness, with scorn for 

the consequences, heedlessly, foolhardily. 

[Model Jury Charges (Criminal), "Simple Assault 

(Bodily Injury) (Lesser Included Offense) (N.J.S.A. 

2C:12-1(a)(1)" (rev. May 8, 2006)).]

See also N.J.S.A. 2C:2-2(b)(3). Bodily injury has been broadly defined as 

"physical pain, illness or any impairment of the physical condition . . . ."

N.J.S.A. 2C:11-1(a).

The Law Division judge's findings and conclusion are well-supported by 

the evidence. We agree defendant's actions consciously disregarded a 

substantial and unjustifiable risk that her actions could cause bodily injury to 

the complainant. Inasmuch as the police were readily available to assist her—

they eventually separated the two and arrested the complainant—her actions 
15 A-3596-18T1

were reckless. And, the complainant's testimony and photographs of his injuries 

proved he suffered bodily injury.

We determine defendant's remaining arguments are without sufficient 

merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only that 

her assertion that the complainant's testimony was tainted is bald. There is no 

evidence the complainant's testimony was based on the video. Although he 

referred to it at times, there is no evidence his testimony was not based on his 

recount of the incident. See, e.g., State v. Miller, 449 N.J. Super. 460, 470 (App. 

Div. 2017) (noting that a fact witness may "testif[y] as to what 'he or she 

perceived through one or more of the senses.'" (quoting State v. McLean, 205 

N.J. 438, 460 (2011))), rev'd on other grounds, 237 N.J. 15 (2019). And, the 

photographs of his injuries were certainly untainted by the video.

Affirmed.