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SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1502-19

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERNEST MIGNOLI, Defendant-Appellant.

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Submitted March 1, 2021 – Decided July 7, 2021

Submitted by New Jersey Civil Lawyer, Jeffrey Hark

On January 7, 2018, Captain Fahnolz of the Asbury Park Fire Department responded to defendant’s report. Defendant called in a report concerning two young girls without heat in their apartment. Captain checked multiple units and spoke to several residents but could not find the girls. Defendant became angry and claimed the Captain did not care about the girls because he was from another town. Later in the night, defendant went to APFD to file a complaint against the captain. The Captain was there and helped defendant file the complaint. After, defendant made threatening remarks about taking the Captain’s kids and making them live with defendant. Defendant then approached the Captain with a closed fist and threatened to kick his ass. Defendant was charged with two counts of petty disorderly persons harassment.

On March 8, 2019, defendant appeared pro se in Freehold because the matter was moved from Asbury Park due to conflicts. Defendant fired his attorney one week preceding the trial date. Before the trial began defendant made two motions 1) the municipal court judge’s recusal, alleging bias stemming from an unrelated complaint and 2) an adjournment of the trial because of defendant’s recent decision to discharge his counsel. The judge denied both motions.  At trial, the court heard testimony from both defendant and the Captain. The judge found the Captain to be more credible and defendant was guilty of both counts of petty disorderly persons harassment. Defendant appealed his conviction to the Law Division. Defendant argued the municipal court judge erred in denying his motions. On October 30, 2019, the Law Division judge issued an order and a written opinion, rejection defendant’s arguments and finding him guilty. Defendant appeals again.

First, defendant argued the Law Division judge erred in finding no abuse of discretion in the municipal court judge’s decision not to recuse himself from this matter. The judge had presided over a pervious, unrelated matter but found defendant guilty in that matter. The Appellate Court found there was no proof of bias and dissatisfaction with a judge’s ruling does not warrant recusal.

Second, defendant argues the Law Division judge erred in finding no abuse of discretion in the municipal court judge’s decision not to adjourn the trial. Defendant fired attorney a few days before trial after knowing the court date for a month. Defendant contends his counsel failed to subpoena witnesses favorable to his defense and could not get a new attorney after firing the original one. On a defendant’s motion to adjourn, “‘there are two conditions which must exist to warrant’ reversal of the conviction.” Miller, 216 N.J. at 66 (quoting Hayes, 205 N.J. at 539). First, “‘the judicial action must have been clearly 9 A-1502-19 unreasonable in the light of the accompanying and surrounding circumstances.'” Ibid. (quoting Hayes, 205 N.J. at 539). Second, the decision must have prejudiced the defendant such that “‘the defendant suffered manifest wrong or injury.'” Id. at 66-67 (quoting Hayes, 205 N.J. at 537). In this case defendant made his motion on the day of trial but made no exceptional circumstance justifying the timing of replacing his former counsel. Defendant as well waited until the last possible second to file the motion and therefore, there was no abuse of discretion.

Third, defendant contends the Law Division judge erred in finding the municipal judge’s constraints on his cross-examination of the Captain did not implicate his sixth amendment right. Defendant argued the municipal court judge stropped him from showing the Captain’s bias and motives. The municipal court judge followed the correct rules when disallowing questions during the cross examination. The court stopped defendant from asking improper questions and did not interfere with defendant’s use of cross-examination for his desired purpose.

Finally, defendant contends the Law Division judge erred in finding the State proved his guilt beyond a reasonable doubt. The Appellate Court found the Law Division judge concluded the State had met its burden in proving the harassment charges against defendant beyond a reasonable doubt for harassment.  There was sufficient credible evidence in the record which supports all the challenged verdicts.

Here at Hark&Hark if are not being represented and going to trial it is particularly important to obtain an attorney. If you do not obtain an attorney there is a good chance the judge’s or jury’s decision will not be decided in your favor. Mr. Hark has been a trial attorney for over 20 years and is here to help you. Please contact us at 856-354-0050.