                        NOT FOR PUBLICATION WITHOUT THE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-2589-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MICHAEL HELLER,

        Defendant-Appellant.


              Argued June 7, 2017 – Decided          July 26, 2017

              Before Judges Alvarez, Accurso, and Lisa.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Passaic County,
              Municipal Appeal No. 6080.

              Michael Confusione argued the cause for
              appellant   (Hegge    &   Confusione,   LLC,
              attorneys; Mr. Confusione, of counsel and on
              the brief).

              Tom Dominic Osadnik, Assistant Prosecutor,
              argued the cause for respondent (Camelia M.
              Valdes, Passaic County Prosecutor, attorney;
              Mr. Osadnik, of counsel and on the brief).

PER CURIAM
      Defendant     Michael   Heller       appeals   his   February     11,    2016

conviction for simple assault, N.J.S.A. 2C:12-1(a)(1), after a

trial de novo in the Law Division.            See R. 3:23.      We affirm.

      The original charges were downgraded and remanded to the

municipal court.         Section (a)(1) of the statute states that an

assault occurs when a person "[a]ttempts to cause or purposely,

knowingly    or    recklessly    causes      bodily    injury      to   another."

N.J.S.A. 2C:12-1(a)(1).         Defendant was convicted after trial.

In   rendering     his   decision,   the     municipal     court    judge     first

reviewed     the   testimony    of     the     State's     witnesses     and     of

defendant.    He said:

            The charge is 2C:12-1(a)(1).    As a simple
            assault, a person is guilty of assault if he
            attempts to cause or purposely, knowingly or
            recklessly causes bodily injury to another.

                 I do find the State['s] witnesses to be
            credible.

After a discussion regarding how inappropriate he considered the

confrontation between the parties, given that it occurred at a

preschool graduation involving families and very young children,

he continued:

                 I'm going to find that the State has
            proved this case beyond a reasonable doubt,
            based on the credibility that I have just
            contacted, or that I've just, uh, put on the
            record. I'm going to find you guilty of at
            least placing the victim in fear for her
            safety, by the words spoken, the fact that

                                       2                                 A-2589-15T2
              you even admit your height and weight, that
              you put her in at least imminent fear.
              There has not been anybody to say, other
              than the victim, uh, or witness, the fact
              that she was struck, and but I find that the
              State has proven what's necessary under that
              statute.

He sentenced defendant to two years' probation, subject to the

completion         of   an     anger    management      program,       and    payment       of

appropriate fines, penalties, and assessments.

       At the first hearing on the trial de novo appeal, the Law

Division judge expressed confusion as to the section of the

statute under which defendant had been convicted.                             He observed

that it was clear that the case was tried under (a)(1), and the

municipal      court         judge     found   defendant       guilty    of    an     (a)(1)

offense, but that towards the end of the decision he rendered

from    the    bench      he   used     language    from    section     (a)(3).          That

section       of    the      statute     defines    assault      as     "[a]ttempts         by

physical      menace      to    put     another    in   fear    of    imminent      serious

bodily injury." N.J.S.A. 2C:12-1(a)(3).

       After hearing argument, the Law Division judge indicated he

was reserving decision on the matter.                      It is not clear how the

judge    communicated          the     decision,    orally      from    the    bench,       in

writing, or merely by an order to the municipal court.                               In any

event, he remanded the matter to the municipal court judge for

clarification.

                                               3                                    A-2589-15T2
    In response, the municipal court judge issued a letter,

reiterating      his    trial    findings,        including          that     the    State's

witnesses       were    credible.           No    additional          proceedings          were

conducted    between     the     trial      and   the     letter.           No    additional

submissions were considered, nor were any additional arguments

made.     The municipal court judge stated unequivocally that the

State had proven a violation of N.J.S.A. 2C:12-1(a)(1) beyond a

reasonable doubt.

    The appeal was finally heard on February 11, 2016. The Law

Division judge after hearing argument opined that under Rule

3:23-8,    it    was    proper       to    have   remanded           the    case     for    the

municipal       court   judge     to       clarify      his    decision.            He     then

proceeded    to    review      the     testimony        of     the    trial       witnesses,

finally concluding that defendant punched the victim, she "fell

backwards, bounced off a door, and hit her head on the floor.

She said she had bruises . . . , cracked a molar, . . . and

. . . passed out."           The judge found the victim's bodily injuries

were corroborated by the emergency room records.                                  He further

found that defendant's testimony that the victim "dove into the

wall is not believable."                  Having found defendant guilty under

section     (a)(1),     he    resentenced         him     to    the        same     sanctions

previously imposed in the municipal court proceeding.



                                            4                                        A-2589-15T2
    During the course of the lengthy municipal court trial, the

details of the confrontation were thoroughly developed.                   They

need not be fully repeated here.           In addition to the victim's

testimony,    the   record   included   that   of    first   responders    who

observed the victim lying on the ground unconscious when they

arrived at the scene.        The victim and defendant had argued at a

preschool graduation concerning plumbing work defendant agreed

to perform in lieu of paying his child's tuition.

    The     victim's   emergency    room   records    were   admitted     into

evidence.     Eyewitnesses, although they did not see defendant

strike the victim, saw or heard them arguing immediately before

the incident, and knew that the victim had landed on the floor.

    Defendant denied punching the victim, specifically denying

that he would punch someone using both hands in the chest as the

victim had described.        He said that if he had punched her in the

manner he would strike someone in a bar fight, which he denied

having done, he "would be probably [] convicted of murder."                 He

also admitted yelling at one of the eyewitnesses who tried to

intervene, "don't fucking touch me," and that he "grew a set

real fast."

    On appeal, defendant raises the following points for our

consideration:



                                    5                               A-2589-15T2
          POINT I
          THE LAW DIVISION ERRED IN REMANDING THE
          MATTER TO THE MUNICIPAL COURT AND ALLOWING
          THE MUNICIPAL COURT JUDGE TO "CLARIFY" HIS
          VERDICT.    DOING SO VIOLATED DEFENDANT'S
          RIGHTS AGAINST DOUBLE JEOPARDY UNDER THE
          FIFTH AND FOURTEENTH AMENDMENTS TO THE
          UNITED STATES CONSTITUTION AND ARTICLE I,
          PARAGRAPH 11 OF THE NEW JERSEY CONSTITUTION.

          POINT II
          NO CONVICTION UNDER N.J.S.A. 2C:12-1[(a)](3)
          -- "ATTEMPTS BY PHYSICAL MENACE TO PUT
          ANOTHER IN FEAR OF IMMINENT SERIOUS BODILY
          INJURY"   --   CAN   BE   SUSTAINED   AGAINST
          DEFENDANT BECAUSE THE LAW DIVISION COURT DID
          NOT FIND BEYOND A REASONABLE DOUBT THAT
          DEFENDANT    COMMITTED   THIS   CRIME,    AND
          DEFENDANT WAS NEVER CHARGED WITH A VIOLATION
          OF THIS CRIME IN THE MUNICIPAL COURT IN
          ACCORDANCE WITH HIS DUE PROCESS RIGHTS.

          POINT III
          THE ADMISSION OF HEARSAY EVIDENCE AT THE
          MUNICIPAL COURT TRIAL VIOLATED THE RULES OF
          EVIDENCE   AND   DEFENDANT'S   CONSTITUTIONAL
          RIGHT TO CONFRONT THE WITNESSES AGAINST HIM,
          AND THE LAW DIVISION JUDGE'S SUBSEQUENT
          RELIANCE    ON    THIS   HEARSAY    TESTIMONY
          DEMONSTRATES THAT THE DECISION IS NOT BASED
          ON SUBSTANTIAL, CREDIBLE EVIDENCE IN THE
          RECORD.

                                  I.

    In   reviewing   a   trial   court's   decision   on   a   municipal

appeal, an appellate court must consider only "the action of the

Law Division and not that of the municipal court."             State v.

Palma, 219 N.J. 584, 591-92 (2014) (quoting State v. Joas, 34

N.J. 179, 184 (1961)).      In the process we do not "weigh the


                                  6                             A-2589-15T2
evidence,       assess     the     credibility         of    witnesses,          or        make

conclusions       about    the     evidence,"     but       rather       must    determine

whether the trial court's findings "could reasonably have been

reached      on      sufficient     credible       evidence         present          in     the

record."       State v. Locurto, 157 N.J. 463, 472 (1999) (citing

State v. Barone, 147 N.J. 599, 615 (1997)).                       However, "[a] trial

court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special

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

140 N.J. 366, 378 (1995).

                                          II.

       The     United    States    Constitution        provides       that      no     person

"shall    []    be    subject     for   the   same     offense      to    be    twice       put

in jeopardy of life or limb."                 U.S. Const. amend. V; State v.

Allah, 170 N.J. 269, 279 (2002).                  The New Jersey Constitution

states "[n]o person shall, after acquittal, be tried for the

same   offense."        N.J.     Const. art.      I,   ¶    11.      "Individuals           are

constitutionally         protected      against    being     tried       twice       for    the

same offense."          Allah, supra, 170 N.J. at 279 (citing State v.

Loyal, 164 N.J. 418, 435 (2000)).                      "[T]he defense of double

jeopardy is available to a defendant, even though the first

trial was in a municipal court, as is here the case."                            State v.

Ebron, 61 N.J. 207, 215 (1972) (citation omitted).                               Recently,

                                          7                                          A-2589-15T2
our Supreme Court adopted the double jeopardy same-elements test

announced in Blockburger v. United States, 284 U.S. 299, 304, 52

S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932).                               State v. Miles, ___

N.J. ___ (2017).          "The same-elements test analyzes the elements

of   the   competing      statutes           to       determine      if    each       contains    an

element    the    other        does    not.            If     each    statute         contains    at

least one     unique       element,           the        subsequent            prosecution       may

proceed."     Miles, supra, ___ N.J. at ___.

      Here,      the    basis         for    defendant's             appeal       is    that     the

municipal court judge acquitted him of (a)(1), and found him

guilty under section (3) of the assault statute, under which he

was not charged.           Since he had been acquitted, remanding the

matter implicated double jeopardy principles.

      We disagree.        The municipal court judge's oral decision can

only be understood to mean that he found defendant guilty of

assault    under       section        (a)(1),          although       he       referred   to     the

language of (3) towards the end, the reference was a mere slip

of the tongue.         He began his decision with the words "The charge

is 2C:12-1(a)(1)."

      Defendant        knew     from        the       outset    the       section      under     the

statute     under      which      he        was       being     tried,         section    (a)(1).

Throughout       the    trial,        everyone          proceeded         on    the    assumption

defendant     was      being    tried        under       section      (a)(1).           And,   most

                                                  8                                       A-2589-15T2
importantly,          when    the    judge      began        making        his       findings,       he

referred to that section of the statute.                               The municipal court

judge's       commentary        regarding           his     concern        that       a     physical

confrontation occurred during a preschool graduation no doubt

distracted him from the task at hand.                             Defendant's contention

that the judge's mistaken reference to the language of (a)(3)

after the judge convicted him of (a)(1) was equivalent to an

acquittal lacks merit.

    Moreover, to have asked for clarification did not place

defendant      in     any     additional        jeopardy.           No     new       evidence      was

received, or argument made.                 The judge's written decision refers

to precisely the same testimony he discussed in rendering his

decision from the bench in the first instance.

                                             III.

    We        find     defendant's        point       II,       related         to    the      proofs

supporting       an    (a)(3)       conviction,            is   moot       in       light    of    our

decision.        See     Greenfield        v.       N.J.    Dep't     of      Corr.,        382   N.J.

Super.    254,       257-88     (App.     Div.       2006)      (citation           omitted)      ("An

issue    is    'moot'        when   the    decision         sought       in     a    matter,      when

rendered,       can     have        no    practical          effect        on       the     existing

controversy.").              And    as    the       New    Jersey        Supreme          Court    has

recently stated, in considering a municipal court appeal, we now

weigh only "the action of the Law Division and not that of the

                                                9                                            A-2589-15T2
municipal court."     See Palma, supra, 219 N.J. at 591-92 (citing

Joas, supra, 34 N.J. at 184).        Because the Law Division judge's

decision was reasonably reached on sufficient credible evidence

in the record, it is entitled to be affirmed.

                                    IV.

    Finally,     defendant    objects      that     hearsay     evidence      was

improperly   admitted   and   relied      upon    by   the   municipal     court

judge.    This issue is also moot, as pursuant to Palma, we look

at the Law Division's assessment of the evidence.

    The Law Division judge rendered his decision solely upon

the victim's testimony, the medical records from the hospital

that were properly admitted under the hearsay rules of evidence,

and eyewitnesses' observation of defendant's hands in the air

and the victim falling to the floor.

    The    Law   Division   judge   noted    that      the   hospital   records

included a statement by the victim that she was struck by a

parent at the graduation ceremony and such "statements as to the

cause of the injury are not automatically within the hearsay

exception[.]"     Dinter v. Sears, Roebuck & Co., 252 N.J. Super.

84, 92 (App. Div. 1991).        However, "reversal is required only

when an unjust result occurred."          Ibid.

    The victim's statement regarding who struck her was not

made in a vacuum.    She testified defendant struck her, testimony

                                    10                                  A-2589-15T2
corroborated by persons standing nearby.   The Law Division judge

did not rely on improper hearsay testimony in rendering his

decision.   There were ample proofs that defendant was guilty

beyond a reasonable doubt of subsection (a)(1).

    Affirmed.




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