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March 23, 2026 Get Citation Alerts Download PDF Add Note

State of New Jersey v. Richard Battaglia

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-3466-21

• Precedential Status: Non-Precedential

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (27.5K)

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Combined Opinion

NOT FOR PUBLICATION WITHOUT THE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-3466-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD BATTAGLIA,

Defendant-Appellant.

---

Argued December 2, 2025 – Decided March 23, 2026

Before Judges Susswein and Augostini.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Municipal Appeal No. 22-
005.

Scott B. McBride argued the cause for appellant
(Lowenstein Sandler LLP, attorneys; Scott B. McBride
and Madison Alexis Diaz, on the briefs).

John E. Horan argued the cause for respondent (Horan
& Aronowitz LLP, attorneys; John E. Horan, of counsel
and on the brief).

PER CURIAM
Defendant Richard Battaglia appeals from a July 5, 2022 Law Division

order affirming on de novo review his municipal court conviction after trial for

violating a local ordinance prohibiting public littering, Hanover Township

Ordinance ch. 171, § 171-2 (Dec. 9, 1971). Because the trial court failed to

ensure that defendant knowingly and voluntarily waived his right to counsel ,

and because the record does not reflect a valid waiver, we reverse defendant's

conviction and remand for a new trial.

I.

We discern the following facts and procedural history from the trial

record. Defendant was charged with violating a Hanover Township municipal

ordinance that prohibits public littering, stemming from an incident in the

Wegmans parking lot.

Sergeant Anthony Vitanza, the State's only witness, was assigned to

provide security for Wegmans during the COVID-19 pandemic. Typically, Sgt.

Vitanza would sit in a marked police car outside the supermarket and

periodically patrol the parking lot. During the afternoon of May 20, 2020, Sgt.

Vitanza drove through the lot and observed defendant's car parked near the 24-

Hour Fitness Gym, which was closed at the time. No other cars were parked in

the lot. Because executive orders issued during the pandemic prohibited

A-3466-21
2
shoppers from loitering, Sgt. Vitanza approached defendant's car and saw a

pizza box underneath the car's driver's side.

In response to Sgt. Vitanza's questions, defendant repeatedly denied that

the box was his. Nonetheless, Sgt. Vitanza concluded that the pizza box

belonged to defendant because it was intact, there were crumbs on defendant’s

shirt, and there was oil on the bottom of the pizza box, signifying that it had not

been there long.

Sgt. Vitanza then told defendant that he was going to check the Wegmans'

security camera footage to determine if he had purchased the pizza in the store.

Sgt. Vitanza advised defendant that if the footage confirmed that he bought the

pizza, defendant would be issued a summons for littering. At that point,

defendant admitted the box was his and told Sgt. Vitanza he intended to pick it

up when he left. After Sgt. Vitanza's request, defendant disposed of the box by

putting it in the back seat of his car.

Two days later, defendant was issued a summons for violating the

municipal littering ordinance. Defendant appeared for an initial court

appearance on June 15, 2020, and entered a not guilty plea. As to the issue of

representation, the court inquired:

THE COURT: . . . are you going to seek an
attorney in this matter, or not?

A-3466-21
3
DEFENDANT: Oh no.

THE COURT: No?

THE COURT: Okay. So you're going to represent
yourself?

On the complaint, the check-off boxes indicating defendant was advised of his

rights by the judge and did not desire counsel were checked.

On December 6, 2021, defendant, self-represented, appeared

telephonically for trial. However, it was adjourned to February 22, 2022, due to

technical issues that prevented defendant from appearing in person or by video.

At trial, the State presented Sgt. Vitanza's testimony and introduced video

surveillance evidence from Wegmans. Defendant, continuing as self-

represented, cross-examined Sgt. Vitanza, called the Wegmans security guard,

and testified on his own behalf. The municipal court found defendant guilty of

violating the littering ordinance and imposed a $500 fine plus court costs of $33.

Defendant filed a de novo appeal to the Law Division on his own behalf,

contending the State lacked probable cause to arrest him and failed to prove the

littering offense beyond a reasonable doubt.

A-3466-21
4
The Law Division summarized defendant's arguments, which included his

assertion as to whether a violation even occurred, He also argued that "the

extreme unlawful means employed by an irrational and unstable patrolman who

was negligently hired, trained and retained," warranted dismissal of the charge.

Defendant did not raise, nor did the Law Division address, the issue of whether

he knowingly and voluntarily waived his right to counsel.

After hearing arguments and reviewing de novo the municipal court

record, the Law Division affirmed the municipal court's guilty finding and

sentence. The Law Division found that Sgt. Vitanza, who was "deemed

credible" by the municipal court, "certainly had sufficient grounds to investigate

the incident based on his observations" of defendant's car in the lot with the

pizza box underneath it. "Considering the circumstantial evidence" as testified

to by Sgt. Vitanza, along with defendant's admission, the Law Division found

the evidence supported a finding beyond a reasonable doubt that defendant

violated the littering ordinance. The Law Division stayed the fine and costs for

ten days pending appeal.

Defendant raises the following points for our consideration:

POINT I
THE TRIAL COURT'S FAILURE TO SECURE A
VALID WAIVER PREJUDICED [DEFENDANT'S]

A-3466-21
5
FUNDAMENTAL RIGHT TO COUNSEL AND
CONSTITUTES PLAIN ERROR.

A. The Right to Counsel at Trial Is Fundamental
and May Only be Waived Knowingly and
Voluntarily.

B. The Record Fails to Demonstrate a Knowing
and Voluntary Waiver of Counsel.

C. The Trial Court's Failure to Secure a Valid
Waiver of Counsel Is a Structural Error
Requiring Reversal.

D. Defendant Was Prejudiced by the Lack of
Counsel at a Critical Stage and the Trial Court's
Failure to Secure a Valid Waiver.

POINT II

THE STATE FAILED TO ESTABLISH ALL
NECESSARY ELEMENTS TO CONSTITUTE A
CONVICTION UNDER [HANOVER TOWNSHIP
ORDINANCE 171-2].

POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN
ITS EVIDENCE RULINGS, PREJUDICING
[DEFENDANT'S] ABILITY TO DEFEND HIMSELF.
A. The Trial Court Excluded Relevant Defense
Evidence.

B. The Trial Court Improperly Limited
[Defendant's] Cross-Examination and
Confrontation Rights.

C. The Trial Court Improperly Admitted
Speculative and Unreliable Testimony.
A-3466-21
6
POINT IV

THE TRIAL COURT IMPOSED AN EXCESSIVE
FINE ON AN INDIGENT DEFENDANT.

A. The Trial Court Failed to Consider
Appellant’s Ability to Pay Before Imposing the
Fine.

B. The $500 Fine is Grossly Disproportionate and
Constitutionally Excessive.

II.

A.

"A defendant convicted in municipal court 'may appeal . . . to the Law

Division and is entitled to a trial de novo.'" State v. Jang, 478 N.J. Super. 252,

259 (App. Div. 2024) (quoting State v. Robertson, 228 N.J. 138, 147 (2017)

citing R. 3:23-1 to -9). The Law Division judge must make independent findings

of fact and conclusions of law but defers to the municipal court's credibility

findings. Robertson, 228 N.J. at 147; State v. Locurto, 157 N.J. 463, 474 (1999);

State v. Kuropchak, 221 N.J. 368, 382 (2015). In an appeal from a de novo

hearing on the record, we do not independently assess the evidence. Locurto,

157 N.J. at 471. Rather, our review of a Law Division judge's decision is limited

to determining whether the findings made by the judge "'could reasonably have

been reached on sufficient credible evidence present in the record.'" Id. at 472

(quoting State v. Barone, 147 N.J. 599, 615 (1997)).

A-3466-21
7
However, we review a trial court's ruling regarding the applicability or

interpretation of laws or court rules de novo. Jang, 478 N.J. Super. at 258 (citing

State v. Dickerson, 232 N.J. 2, 17 (2018)). We owe no deference to those legal

determinations. State v. Handy, 206 N.J. 39, 45 (2011) ("[A]ppellate review of

legal determinations is plenary." (citing Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995))). Additionally, and relevant here, we

only consider issues raised for the first time on appeal if plain error is

established. R. 2:10-2. Under that standard, we must determine whether any

error was "of such a nature as to have been clearly capable of producing an

unjust result." Ibid.

B.

Defendant contends that the municipal court did not secure a knowing and

voluntary waiver of his right to counsel as guaranteed by the federal and New

Jersey Constitutions as well as required by Rule 7:8-10. Moreover, defendant

contends the denial of counsel was a structural defect in the proceedings and a

fundamental error which is not subject to a harmless error analysis.

"Defendant possesses both the right to counsel and the right to proceed to

trial without counsel." State v. DuBois, 189 N.J. 454, 465 (2007). "The Sixth

Amendment to the United States Constitution and Article I, Paragraph 10 of the

A-3466-21
8
New Jersey Constitution guarantee criminal defendants the right to counsel,"

ibid., while the United States Supreme Court has "held that the Sixth

Amendment . . . gives criminal defendants the right to proceed without counsel

when they voluntarily and intelligently elect to do so," ibid. (citing Faretta v.

California, 422 U.S. 806, 818 (1975)).

"Indigent defendants facing imprisonment or other consequences of

magnitude [in municipal court proceedings] are [] guaranteed the appointment

of counsel without cost 'as a matter of simple justice.'" State v. Patel, 239 N.J.

424, 436 (2019) (quoting Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) and

citing R. 7:3-2(b)). Rule 7:3-2(b) provides, in relevant part that:

[i]f the court is satisfied that the defendant is indigent
and that the defendant faces a consequence of
magnitude or is otherwise constitutionally or by law
entitled to counsel, the court shall assign the municipal
public defender to represent defendant.

"In determining if an offense constitutes a consequence of magnitude . . . the

[municipal] judge should consider: (1) [a]ny sentence of imprisonment; . . .

[(2)][a]ny monetary sanction imposed by the court of $800 or greater in the

aggregate . . . ." Guidelines for Determination of Consequence of Magnitude,

Pressler & Verniero, Current N.J. Court Rules, Appendix VII to R. 7:3-2 (2026).

A-3466-21
9
Rules 7:3-2 and 7:8-10 must be followed to safeguard a defendant's right

to counsel in municipal court. Rule 7:3-2(a) mandates that at defendant's first

court appearance,

the judge shall inform [] defendant of the charges and
shall furnish [] defendant with a copy of the complaint
or copy of the electronic ATS/ACS record of the
complaint, if not previously provided to [] defendant.
The judge shall also inform [] defendant of the range of
penal consequences for each offense charged, the right
to remain silent and that any statement made may be
used against [] defendant. The judge shall inform []
defendant of the right to retain counsel or, if indigent,
to have counsel assigned pursuant to paragraph (b) of
this rule. [] [D]efendant shall be specifically asked
whether legal representation is desired and defendant’s
response shall be recorded on the complaint. If []
defendant is represented at the first appearance or then
affirmatively states the intention to proceed without
counsel, the court may, in its discretion, immediately
arraign [] defendant pursuant to [Rule] 7:6-1.

[(Emphasis added).]

In order to ensure a knowing and voluntary waiver of counsel, Rule 7:8-

10 prescribes as follows:

In all cases other than parking cases, a request by a
defendant to proceed to trial without an attorney shall
not be granted until the judge is satisfied from an
inquiry on the record that [] defendant has knowingly
and voluntarily waived the right to counsel following
an explanation by the judge of the range of penal
consequences and an advisement that [] defendant may

A-3466-21
10
have defenses and that there are dangers and
disadvantages inherent in defending oneself.

These rules are in accord with our constitutional protections and principles

assuring defendants the right to counsel or a knowing and intelligent waiver of

that fundamental right.

At defendant's first appearance on June 15, 2020, the court informed him

that he was charged with a littering ordinance violation, but the record does not

specifically reflect that defendant was advised of the range of penal

consequences. If convicted of this littering violation, defendant faced a

maximum fine of up to $1,000 and ninety days of jail time—qualifying as

consequences of magnitude. Ch. 171, § 171-2. Thus, if indigent, defendant

would have been eligible for the assignment of the municipal public defender.

The court generally inquired of defendant if he intended to "seek an

attorney in the matter;" however, it failed to specifically advise him of his right

to retain counsel, or if indigent, to have the municipal public defender assigned

to represent him given that he was facing consequences of magnitude if

convicted. Nor did the court alert defendant to the "dangers and disadvantages"

of self-representation or provide any information regarding the risks in

proceeding without counsel. R. 7:8-10; State v. Crisafi, 128 N.J. 499, 509-10

(1992); DuBois, 189 N.J. at 468.

A-3466-21
11
At the next scheduled hearing on December 6, 2021, defendant appeared

telephonically, stating he was "appearing for myself." The court advised

defendant:

THE COURT: Alright, Mr. Battaglia, we're going to
have a trial, at which point the State is going to produce
evidence, and you're going to have an opportunity to
cross-examine and present your own –

THE COURT: -- case. But I want to make sure that
you understand that you have no duty or no . . . burden
of proof. Only the State has the burden of proof in this
case, and it's beyond a reasonable doubt. Do you
understand?

DEFENDANT: Yes, thank you, Judge.

....

THE COURT: At the end of the case, [i]f I should
find against you, you have a right to appeal, as you
would in any [c]riminal [c]ourt. In order, in order to
appeal, you have to order a copy of the trial transcript
and make $100 application fee, within 20 days. Do you
understand that?

THE COURT: If you do that, your matter will then be
reviewed by a Superior Court judge in Morristown. Do
you understand?

DEFENDANT: Um, yes.

A-3466-21
12
Once again, the court did not inquire as to whether defendant wanted legal

representation or if he understood the challenges he might face representing

himself at trial.

On February 22, 2022, the rescheduled trial date, the court mentioned

specifically for the first time before trial began defendant's right to counsel:

You have the right to the services of the public
defender, but it's not unlimited. I note that [] defendant
. . . is not represented by the public defender in this
instance. . . . [T]he public defender is available, if . . .
your potential penalties . . . [include] a $750.00 fine or
more. . . . There is also, incidentally, a $200 statutory
fee, for the services of the public defender . . . [which]
can be waived in situations of hardship, so if you want
to seek a waiver, you need to do that before we start the
case, and I'll give you the opportunity to.

This explanation, however, fell short because the court had not advised

defendant of his potential penal exposure if found guilty.

Then, immediately before the State presented its case, the following

exchange occurred:

THE COURT: Who . . . speaks for you, Mr. Battaglia?

DEFENDANT: . . . I'm here on my own behalf.

....

THE COURT: Okay.

No further colloquy took place regarding defendant's right to counsel.

A-3466-21
13
The municipal court erred in two critical respects. First, the court erred

by merely accepting defendant's statement that he was representing himself and

by not "specifically ask[ing]" him "whether legal representation [was] desired"

as required by Rule 7:3-2(a). The court further erred by not complying with the

self-representation protocol mandated by Rule 7:8-10 to secure a valid waiver

of counsel. In accordance with Rule 7:8-10, the court did not advise defendant

of the range of penal consequences, that he may have defenses, and of the

"dangers and disadvantages inherent in defending oneself."

Because defendant was facing consequences of magnitude, he was eligible

for the appointment of a public defender if indigent. Without advising him of

those potential consequences, the court's explanation of the right to counsel was

incomplete. The court was obligated to directly advise defendant that because

of the penal consequences he faced if found guilty, he was eligible for the

appointment of a public defender, provided he was indigent, and explain the

application process to him. R. 7:3-2(a). Because that did not occur, we hold

that the court's explanation of defendant's eligibility for the appointment of

counsel if indigent was deficient.

The court did not make the necessary finding under Rule 7:8-10 that it

was "satisfied from an inquiry on the record that [] defendant [had] knowingly

A-3466-21
14
and voluntarily waived [his] right to counsel following [such] an explanation."

We are unable to discern from this record whether defendant's waiver of the

right to counsel was a knowing and voluntary decision.

The State argues that if defendant desired legal representation, then he

was likely to have raised it either before the municipal court or the Law Division.

Even though defendant did not indicate that he wanted legal counsel, we are not

satisfied that he fully understood and knowingly waived this fundamental right

based on the record before us. State v. Guerin, 208 N.J. Super. 527, 533 (App.

Div. 1986) ("Courts will indulge every reasonable presumption against the

waiver of fundamental constitutional rights and will not presume their loss by

acquiescence."). Only with a "searching inquiry" can a court be assured that a

defendant is making an informed decision to waive counsel. Id. at 534 (quoting

United States v. Welty, 674 F.2d 185,189 (3rd Cir. 1982)). The record in this

case is void of such an inquiry.

Here, because the court failed to secure a knowing and intelligent waiver

of defendant's right to counsel, as required by Rules 7:3-2 and 7:8-10, we must

vacate the judgment against defendant and remand for a new trial. We need not

analyze whether that failure was prejudicial. We also need not address the rest

of the issues raised by defendant on appeal.

A-3466-21
15
At the remand hearing, the assigned judge shall first address the

representation issues in compliance with Rules 7:3-2(a) and 7:8-10. We take no

position on the merits of the case.

Vacated and remanded for a new trial. We do not retain jurisdiction.

A-3466-21
16