                                 NOT FOR PUBLICATION WITHOUT THE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-3596-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MAYA CIEPLOCH,

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

2C:12-1(a)(1), defendant Maya Cieploch 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.



                                                                          A-3596-18T1
                                        2
      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 prosecutor 1 and 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.
                                                                            A-3596-18T1
                                         3
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




                                                                             A-3596-18T1
                                         4
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


                                                                           A-3596-18T1
                                        5
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 t he
video until the trial date.
                                                                           A-3596-18T1
                                         6
            [TRIAL COUNSEL]: Your Honor, before I start cross-
            examination, 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.

                                                                          A-3596-18T1
                                        7
       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.
                                                                         A-3596-18T1
                                        8
      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




                                                                           A-3596-18T1
                                         9
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 cross-

examination.

      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.
                                                                          A-3596-18T1
                                       10
      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.

                                                                       A-3596-18T1
                                     11
            [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.




                                                                            A-3596-18T1
                                        12
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.
                                                                           A-3596-18T1
                                       13
      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


                                                                        A-3596-18T1
                                      14
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.




                                                                           A-3596-18T1
                                       15
