                        NOT FOR PUBLICATION WITHOUT THE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-2335-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ERIC GROETHING,

        Defendant-Appellant.

_____________________________________

              Argued April 26, 2017 – Decided August 7, 2017

              Before Judges Fuentes, Carroll and Farrington.

              On appeal from the Superior Court of New
              Jersey, Law Division, Hudson County, Municipal
              Appeal No. 3-15.

              Jeffrey G. Garrigan argued the cause for
              appellant (Cammarata, Nulty & Garrigan, LLC,
              attorneys; Mr. Garrigan, on the brief).

              Frances Tapia Mateo, Assistant Prosecutor,
              argued the cause for respondent (Esther
              Suarez, Hudson County Prosecutor, attorney;
              Ms. Mateo, on the brief).

PER CURIAM

        Defendant     Eric    Groething     was    involved     in   a   physical

altercation with Nicholas Garret.              The incident occurred in the
basement laundry room of the apartment building in Jersey City

where   both   men    resided;   the   incident   was    videotaped   by   the

building's security camera.            The reasons that triggered this

physical confrontation between these two adults are not germane

to the legal issues raised in this appeal.              Suffice it to say it

concerned what can best be described as a violation of laundry-

room etiquette. The videotape recording shows that the altercation

ended when Groething overpowered Garret and left him unconscious

on the floor.        At the time, Groething was employed as a police

officer by the Plainfield Police Department.             However, his status

as a police officer played no role in this matter.              He was off-

duty, wore civilian clothes, and was performing a purely personal

task when he engaged Garret.

     Groething reported the incident to the Jersey City Police

Department immediately after the altercation ended.              Garret was

originally charged with third degree aggravated assault upon a

police officer under N.J.S.A. 2C:12-1b(5).               A few days later,

Garret filed a complaint against Groething charging him with the

disorderly persons offense of simple assault, N.J.S.A. 2C:12-

1a(1), and the petty disorderly persons offense of harassment,

N.J.S.A. 2C:33-4(a).        The Hudson County Prosecutor's Office's

downgraded the charge against Garret to simple assault, N.J.S.A.



                                       2                              A-2335-15T1
2C:12-1a(1), and the cross-complaints were transferred to the

Jersey City Municipal Court for trial.

     The two cases were tried before the Jersey City Municipal

Court   over   two   non-consecutive    days.   Because   these   matters

involved cross-complaints, the parties were represented by their

privately retained counsel who acted as both defense counsel and

private prosecutor.     See State v. Myerowitz, 439 N.J. Super. 341,

354 (2015); R. 7:8-7(b).     The municipal court judge found both men

guilty of committing the petty disorderly persons offense of simple

assault by engaging "in a fight or scuffle entered into by mutual

consent," N.J.S.A. 2C:12-1a, as a lesser included offense of the

disorderly persons offense of simple assault.      The municipal court

judge also found Groething guilty of the petty disorderly persons

offense   of   harassment,   N.J.S.A.    2C:33-4(a).      Both   men   were

sentenced to pay the mandatory minimum monetary penalties, which

amounted to $125.

     The parties sought a de novo review before the Law Division

pursuant to Rule 3:23-8.        In addition to the factual record

developed before the municipal court, the Law Division Judge also

received briefs filed by defendants' attorneys.        The Hudson County

Prosecutor's Office represented the State before the Law Division.

R. 3:23-9(c).



                                   3                               A-2335-15T1
     After reviewing the record developed before the municipal

court and considering the arguments of counsel, the Law Division

Judge made the following findings:

          [T]he [c]ourt finds that as to Mr. Groething,
          he is guilty of simple assault; that his
          defense of self[-]defense has no basis in
          facts and the case below; that with regards
          to Mr. Garret, . . . while he was boisterous
          in his language, while he . . . had an exchange
          of words between himself and Mr. Groething,
          [he] had not exhibited any aggressive behavior
          until Mr. Groething was literally at his feet
          with his hands up, at which point Mr. Garret
          defended himself out of fear for his safety
          and the aggression that had been exhibited to
          him. And therefore there was not a basis in
          the facts and evidence presented to the
          [c]ourt below to find Mr. Garret guilty of
          . . . simple assault or mutual fighting, as
          he was acting in self[-]defense as reflected
          both in the video and the testimony of the
          defendant [Groething] below, which the [c]ourt
          finds credible.

          Therefore mutual fighting was inappropriate
          and the finding that self[-]defense is not
          viable with regards to mutual fighting is also
          inapplicable   in   this  case   because   Mr.
          Groething is guilty of simple assault and
          because Mr. Garret was acting in self[-]
          defense.

     The Law Division Judge found "no evidence" to support a

finding of harassment under N.J.S.A. 2C:33-4 and dismissed that

charge against Groething.   Having found Groething guilty of simple

assault, the Law Division Judge believed a greater, more punitive




                                 4                          A-2335-15T1
sentence than the one imposed by the municipal court judge was

warranted.    As the Judge noted:

         The fines that were imposed as it relates to
         Mr. Groething and the sentence of the [c]ourt
         below . . . were the $50 Victims of Crime and
         $75 Safe Neighborhood [fines].       There was
         nothing else ordered by the [municipal]
         [c]ourt.   However, the [c]ourt is going to
         require . . . an additional component of the
         sentence, now that it is no longer a PDP [petty
         disorderly   persons]    but   instead   a   DP
         [disorderly persons], that the defendant, Mr.
         Groething,   is   required    to   have   anger
         management    and/or    cultural    sensitivity
         [training] . . . as a result of the assaultive
         behavior in this particular matter.

    Against    this   record,   defendant   now   raises   the   following

arguments in this appeal.

         POINT ONE

         THE SUPERIOR COURT JUDGE IMPROPERLY CONVICTED
         DEFENDANT OF THE DISORDERLY PERSONS OFFENSE
         OF SIMPLE ASSAULT AFTER HE WAS ACQUITTED OF
         THAT CHARGE AND CONVICTED OF PETTY DISORDERLY
         PERSONS OFFENSE OF SIMPLE ASSAULT IN MUNICIPAL
         COURT.

                A.    The Double Jeopardy Clause
                Precludes Appellant's Conviction
                for   Disorderly Persons Offense
                Simple Assault.

                B.     New Jersey Public Policy
                Prohibited the Superior Court Judge
                From Convicting Appellant of a More
                Serious Offense Resulting in a Risk
                of a Greater Sentence.




                                    5                              A-2335-15T1
          POINT TWO

          ASSUMING ARGUENDO THIS COURT FINDS THAT DE
          NOVO REVIEW SHOULD HAVE BEEN LIMITED TO THE
          PETTY DISORDERLY PERSONS OFFENSE OF SIMPLE
          ASSAULT, ACQUITTAL IS WARRANTED ON THAT CHARGE
          AS WELL AS DEFENDANT WAS NOT ENGAGED IN A FIGHT
          UNDER THE LAW.

               A.   The State Failed to Prove the
               Element of Mutual Consent Requiring
               an Acquittal of the Petty Disorderly
               Persons    "Fighting    by    Mutual
               Consent" Charge.

               B.    The Evidence Suggests that
               Defendant Groething Did Not Possess
               the Intent to Fight.

     We agree with defendant's argument as expressed in Point I,

reverse the judgment of the Law Division, and remand for the entry

of a judgment of acquittal.      Our Supreme Court has recently

addressed two separate but highly important issues related to the

interplay between the municipal courts and the Law Division.       In

State v. Robertson, 228 N.J. 138, 144 (2017), the Court for the

first time established the appropriate standards for a stay of a

driver's license suspension in a driving while under the influence

case, arising under N.J.S.A. 39:4-50, in two contexts: a judgment

of the municipal court pending a trial de novo in the Law Division,

and a determination by the Law Division pending appeal to this

court.




                                6                           A-2335-15T1
     In settling this important aspect of appellate jurisprudence,

the Court in Robertson reaffirmed the standard of review between

the Law Division and the municipal court.

          In the Law Division, the trial judge "may
          reverse and remand for a new trial or may
          conduct a trial de novo on the record below."
          R. 3:23-8(a)(2). At a trial de novo, the court
          makes its own findings of fact and conclusions
          of law but defers to the municipal court's
          credibility findings. See State v. Ross, 189
          N.J. Super. 67, 75 (App. Div.), certif.
          denied, 95 N.J. 197 (1983).       It is well-
          settled that the trial judge "giv[es] due,
          although not necessarily controlling, regard
          to the opportunity of the" municipal court
          judge to assess "the credibility of the
          witnesses."   State v. Johnson, 42 N.J. 146,
          157 (1964). Once again, the State must carry
          the burden of proof . . . beyond a reasonable
          doubt. See State v. Kuropchak, 221 N.J. 368,
          382 (2015); State v. Snyder, 337 N.J. Super.
          59, 61-62 (App. Div. 2001).

          [Robertson, supra, 228 N.J. at 147-48.]

     Recently, the Court also clarified the methodology used to

"determin[e] what constitutes the 'same offense' for purposes of

double jeopardy."     State v. Miles, ____ N.J. ____, ____ (2017)

(slip op. at 2).    The defendant in Miles was arrested for selling

marijuana to an undercover police officer.       Ibid.   He was charged

"in a warrant complaint" with possession of marijuana with intent

to   distribute,    N.J.S.A.   2C:35-5(b)(12),    and    possession    of

marijuana with intent to distribute on or within 1000 feet of a

school property, N.J.S.A. 2C:35-7.     Ibid.   In a separate municipal

                                   7                            A-2335-15T1
summons, the defendant was also charged with the disorderly persons

offense of possession of fifty grams or less of marijuana, N.J.S.A.

2C:35-10(a)(4).     Ibid.     All of these charges arose from the same

core facts: the incident involving the undercover police officer.

Ibid.

     After    the   Grand     Jury    returned         an   indictment        charging

defendant with the offenses contained in the warrant complaint in

the Superior Court, the municipal court amended the disorderly

persons possession offense to loitering to possess marijuana,

N.J.S.A. 2C:33-2.1(b)(1).          Id. at 3.      The defendant pleaded guilty

to the amended charge in the municipal court and moved to dismiss

the indictment pending in the Superior Court on double jeopardy

grounds.    Id. at 4.    The defendant argued "that prosecution on the

possession charges was barred because he had already pled guilty

to an offense that arose from the same conduct."                     Ibid.

     In rejecting the defendant's argument, our Supreme Court

adopted the United States Supreme Court's "same-elements test"

expressed in Blockburger v. United States, 284 U.S. 299, 52 S. Ct.

180, 76 L. Ed. 306 (1932), for determining whether a second

prosecution   based     on   the    same       facts   is   barred    by     the   Fifth

Amendment's Double Jeopardy Clause.                State v. Miles, supra, slip

op. at 2.    The Miles Court quoted directly from the United States



                                           8                                   A-2335-15T1
Supreme Court in Blockburger to provide the following description

of the "same-elements" test:

           [W]here   the   same   act   or    transaction
           constitutes a violation of two distinct
           statutory provisions, the test to be applied
           to determine whether there are two offenses
           or only one, is whether each provision
           requires proof of a fact which the other does
           not." In other words, if each statute at issue
           requires proof of an element that the other
           does not, they do not constitute the same
           offense and a second prosecution may proceed.

           [Id. at 11-12 (quoting Blockburger, supra, 284
           U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at
           309).]

     In adopting the "same-elements" test in Blockburger, the

Miles   Court   also   reaffirmed   the   three   critical   protections

embodied in the Fifth Amendment's double jeopardy clause:

           It protects against (1) "a second prosecution
           for the same offense after acquittal," (2) "a
           second prosecution for the same offense after
           conviction," and (3) "multiple punishments for
           the same offense." North Carolina v. Pearce,
           395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23
           L. Ed. 2d 656, 664-65 (1969). Common to all
           three protections is the concept of "same
           offense." Accordingly, a prime concern when
           reviewing a double-jeopardy claim is "whether
           the second prosecution is for the same offense
           involved in the first." State v. Yoskowitz,
           116 N.J. 679, 689 (1989) (quoting State v. De
           Luca, 108 N.J. 98, 102, cert. denied, 484 U.S.
           944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987)).

           [Id. at 11.]




                                    9                            A-2335-15T1
     However, the most definitive and clearest explanation for

overturning the Law Division's decision in this appeal is found

in N.J.S.A. 2C:1-9, which provides in pertinent part:

            A prosecution of a defendant for a violation
            of the same provision of the statutes based
            upon the same facts as a former prosecution
            is barred by such former prosecution under the
            following circumstances:

            a.   The former prosecution resulted in an
            acquittal by a finding of not guilty by the
            trier of fact or in a determination that there
            was insufficient evidence to warrant a
            conviction. A finding of guilty of a lesser
            included offense is an acquittal of the
            greater inclusive offense, although the
            conviction is subsequently set aside.

            [(Emphasis added).]

     Here, defendant Groething was acquitted by the Jersey City

Municipal   Court   of   the    disorderly      persons   offense     of    simple

assault, N.J.S.A. 2C:12-1a(1).              The municipal court found him

guilty of the lesser included offense of engaging in a "fight or

scuffle entered into by mutual consent," a petty disorderly persons

offense under N.J.S.A. 2C:12-1a(3).           The Law Division Judge found

Garret not guilty of committing the petty disorderly persons

offense of fighting under N.J.S.A. 2C:12-1a(3) because he did not

give his consent.        Without the element of "consent," the Law

Division    Judge   reasoned,    the    State    did   not   prove,   beyond       a




                                       10                                  A-2335-15T1
reasonable doubt, that Garret was guilty of fighting under N.J.S.A.

2C:12-1a(3).

     This   reasoning   also   leads   to   one   inexorable   conclusion:

Groething is also not guilty of fighting under N.J.S.A. 2C:12-

1a(3).   As defined under N.J.S.A. 2C:12-1a(3), mutual consent is

an indispensable element of this petty disorderly persons offense.

The Law Division Judge assumed that finding Garret not guilty for

lack of consent axiomatically empowered her to vacate the municipal

court's judgment finding Groething not guilty of simple assault.

The Law Division Judge was incorrect in this assumption.          Once the

municipal court acquitted Groething of simple assault, he cannot

again be placed in jeopardy of being convicted for this offense.

State v. Miles, supra, slip op. at 11-12, 16; N.J.S.A. 2C:1-9a.

     Defendant's judgment of conviction for the disorderly persons

offense of simple assault, N.J.S.A. 2C:12-1a(1), is vacated and

the matter is remanded to the trial court to enter a judgment of

acquittal consistent with this opinion.

     Reversed and remanded.     We do not retain jurisdiction.




                                  11                               A-2335-15T1
