Petty Disorderly Persons Simple Assault Rather Than Disorderly Persons Simple Assault

State of New Jersey v. Adrian Birch

Docket No. A-1429-21

Decided January 4, 2023

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Court of New Jersey decided defendant’s appeal of his conviction for simple assault against his then-wife.

In June 2019, after 48 years of marriage, the defendant wanted to commemorate his anniversary with his then wife by purchasing a necklace and matching bracelet for her and then go out to dinner. After the couple returned home from dinner, defendant’s wife took the necklace off and could not find it. She eventually accused defendant of taking it to give to his alleged mistress. The couple began to argue and then proceeded to get into a physical altercation. Defendant’s wife then called the police.

Defendant was subsequently charged with terroristic threats, unlawful possession of a weapon, and simple assault. Defendant also brought charges against his wife in municipal court but a judge found that defendant’s allegations were not supported by probable cause and the complaint was not filed.

Defendant was indicted on the charges, but the indictment was later dismissed without prejudice and the the State retained the right to re-present the charges to a grand jury. Defendant was never indicted again but the one count of simple assault was remanded to municipal court. The same judge who failed to find probable cause to support defendant’s complaint against his wife was assigned the case. Defendant moved to recuse the judge, but the judge denied that request.

After hearing testimony, the municipal judge found the wife to be mostly credible, although the court noted some inconsistencies in her testimony. The municipal judge determined that defendant’s testimony and version of the altercation was not credible. Based on all the evidence presented at trial, the municipal judge determined that both parties engaged in a physical fight during which defendant had recklessly caused injury to his wife. Therefore, the municipal judge found defendant guilty of petty disorderly persons simple assault and sentenced him to pay a fine of $50 and imposed additional penalties and costs of $258. Defendant appealed.

On appeal, defendant sought de novo review in the Law Division. After hearing oral argument and conducting a de novo review of the record, the Law Division determined that defendant was guilty of simple assault and imposed the same sentence as the municipal court. Defendant appealed once again.

On appeal to the Appellate Division, defendant contended that Law Division violated his due process and double jeopardy rights by finding him guilty of a more serious offense than the municipal court. Defendant also argued that there was insufficient evidence to support his conviction. Finally, defendant argued that the municipal court judge should have recused herself. The court rejected defendant’s arguments and determined that the that the Law Division had found sufficient facts to convict defendant of petty disorderly persons simple assault because they concluded that defendant and his then-wife were engaged in mutual combat. The court accordingly remanded for the law division to enter a new written judgment of conviction clarifying that defendant was convicted of petty disorderly persons simple assault rather than disorderly persons simple assault.

At Hark & Hark, we are experienced attorneys who represent clients in Municipal Court and Superior Court for issues like the previously discussed case pertaining to simple assault. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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