NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
We address this matter on the Supreme Court's remand. Defendant Larry Martin's petition for certification raised a new issue not previously argued on his earlier appeal. That issue is whether State v. De Bonis, 58 N.J. 182 (1971), compels that defendant be acquitted of the offense of obstruction of a governmental function, N.J.S.A. 2C:29-1(a). The Law Division judge, after convicting defendant of the obstruction charge on the trial de novo, imposed a $500 fine and $158 in costs and penalties. See R. 3:23. We now vacate the conviction and sentence. Thus defendant's only remaining conviction resulting from the incident at issue is simple assault, N.J.S.A. 2C:12-1(a). State v. Martin, No. A-3777-12 (App. Div. Apr. 9, 2015) (slip op. at 1), remanded, 222 N.J. 308 (2015).
We have previously described the facts leading to the charges and the municipal court trial, and need not repeat them here. See id. at 2-10. The procedural history, which we do recount, is the heart of the matter.
The municipal court judge made no finding on the charge of obstruction, even after being reminded to do so by the municipal prosecutor. He found defendant guilty, however, of resisting arrest, N.J.S.A. 2C:29-2(a)(1), and simple assault, N.J.S.A. 2C:12-1(a). The prosecutor and the judge then engaged in the following colloquy:
[The prosecutor]: Judge, I think there was . . . an obstructing governmental function complaint as well. I'm not sure if we closed that one out or not.
. . . .
[The prosecutor]: I . . . could be wrong. I don't have my . . . file. I just came back from Morris County. I just want to make sure all the files are closed out.
THE COURT: All right. I have two files against Mr. Moschella. That's the assault and I find not guilty. Officer Cook, not guilty. [Defendant] [on] the resisting arrest is guilty. And [defendant] on the assault I would find him guilty. And I will merge and dismiss the second resisting arrest into one.
[The prosecutor]: Very good, judge.
THE COURT: So one charge of resisting, one charge of assault is . . . guilty. That's all I have before the court.
[The prosecutor]: Thank you, Judge.
THE COURT: Okay. All right. As to the sentencing[.]
Although the municipal court judge did not address the obstruction complaint, the judgment of conviction mistakenly indicated that defendant was found guilty. No penalty was specified. Martin, supra, slip. op. at 10.
In rendering his initial findings, the Law Division judge found defendant guilty of simple assault and obstruction, id. at 11-12, and said he would impose the same sentence as that imposed in the municipal court. He found defendant not guilty of resisting arrest. Id. at 11.
A few days later, the Law Division judge went back on the record with counsel present and stated:
At the conclusion of the [c]ourt's decision on the [m]unicipal [a]ppeal in this matter, I merely stated that I would sentence the defendant to the same fines and penalties as the [m]unicipal [c]ourt had. Unfortunately, due to a number of strange occurrences, that requires some clarification.
In the original findings in the North Bergen Municipal Court, the defendant was found guilty of simple assault and resisting arrest. There was no finding on the record with respect to obstruction. However, the judgment of conviction did in fact indicate the [c]ourt had found the defendant guilty of obstruction, but there was likewise no sentence attached to that.
Given this [c]ourt's findings respecting the charges, it's necessary that I impose a sentence for the obstructing charge, which has not heretofore been pronounced. So that, the sentence altogether, we might as well put it all on the record, on the simple assault charge, the sentence is $500 fine, $33 court costs, $50 VCCP, $75 Safe Streets charge. On the obstruction charge, the defendant is sentenced to a $500 fine, $33 in court costs, a $50 VCCB, and a $75 Safe Neighborhood assessment.
Although we acknowledged this peculiarity in our decision, defendant did not raise the De Bonis issue at that time. See id. at 10-13. After substitution of counsel, it was raised in the petition for certification, and the matter remanded accordingly.
On appeal, our review of a trial judge's legal conclusions is plenary. State v. Goodman, 415 N.J.Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Consideration of the Law Division judge's decision to essentially fill in the blanks left by the municipal court judge and to impose a new sentence upon defendant is purely a question of law.
De Bonis, simply stated, stands for the proposition "that as a matter of policy and apart from constitutional compulsion, a defendant who appeals from a municipal court should not risk a greater sentence." Supra, 58 N.J. at 188. The policy considerations stemmed from the nature and origin of the municipal courts and "the need . . . to afford the litigant[] the opportunity to seek a redetermination by a court at a higher level without the risk of a larger penalty." Id. at 189. That doctrine was "reaffirm[ed]" in 2004 when the Supreme Court reiterated "that a defendant convicted and sentenced in a municipal court may not be subjected to a greater sentence on appeal." State v. Kashi, 180 N.J. 45, 49 (2004).
This defendant was subjected to a greater sentence on appeal. He was convicted and sentenced on two offenses arising from one incident, which as a result of the municipal court judge's misunderstanding, did not include the open charge of obstruction.
The Law Division judge assumed from the erroneous entry of a judgment of conviction on the municipal court paperwork, in the absence of explicit findings by the municipal court judge, that defendant had been previously convicted. This is contrary to established precedent, as the written entry of an order or judgment is a mere ministerial act, as contrasted with a judge's statements on the record. See State v. Murray, 338 N.J.Super. 80, 91 (App. Div.) ("[W]e consider the sentencing transcript, rather than the judgment of conviction, to be the true source of the sentence."), certif. denied, 169 N.J. 608 (2001); State v. Rivers, 252 N.J.Super. 142, 147 n.1 (App. Div. 1991) ("Where there is a discrepancy between the trial court's oral pronouncement of sentence and the sentence described in the judgment of conviction, the transcript of the trial judge's remarks controls."); Pressler & Verniero, Current N.J. Court Rules, comment 1.8 on R. 3:21-4 and comment 2 on R. 1:13-2 (2016).
That the judgment of conviction stated that defendant had been found guilty should have been found by the Law Division judge to be of no consequence. The municipal court judge said nothing about the charge; he convicted defendant only of simple assault and resisting arrest.
As a matter of law, defendant was subjected to a greater sentence on his appeal to the Law Division than initially occurred in the municipal court. See De Bonis, supra, 58 N.J. at 188. He had not been previously sentence on obstruction.
Initially, after all, defendant was not found guilty of obstruction, nor was any penalty imposed for the offense. He was only sentenced for assault and resisting arrest offenses, and the resisting arrest was vacated by the Law Division judge. To rule otherwise would give the prosecutor "a chance to obtain a larger sentence" after "defendant's successful demonstration of reversible error." See ibid.
The Supreme Court's remand was directed solely to the De Bonis argument. Thus our prior decision affirming the simple assault conviction remains. We now vacate only the obstruction conviction.
Reversed as to the obstruction conviction.
