Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0101-25 STATE OF NEW JERSEY, Plaintiff-Respondent, v. W.F.D.,1 Defendant-Appellant. _______________________ Submitted October 6, 2026 – Decided November 4, 2026 Before Judges Rose and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 24-10- 1422. Francis J. Masciocchi, attorney for appellant. LaChia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the brief). 1 We use initials and a pseudonym for the child's name pursuant to Rule 1:38- 3(d)(11); see also N.J.S.A. 2A:82-46. PER CURIAM Following a bench trial, the court convicted defendant W.F.D. of second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2), simple assault, N.J.S.A. 2C:12-1(a)(1), as amended from third-degree assault, and fourth-degree child abuse, N.J.S.A. 9:6-3, charged in a three-count Burlington County indictment, for assaulting his then fourteen-year-old daughter, I.D. (Ivy), during a physical confrontation. At sentencing, the court rejected defendant's application to sentence him as a third-degree offender to a probationary term. After merging the assault and child abuse convictions with the endangering conviction, the court imposed a five-year prison term. On appeal, defendant raises the following points for our consideration: I. THE VERDICT MUST BE VACATED BECAUSE DEFENDANT'S WAIVER OF TRIAL BY JURY WAS MADE CONTRARY TO COURT RULE AND CONTROLLING PRECEDENT. II. DEFENDANT SHOULD HAVE BEEN SENTENCED IN THE THIRD-DEGREE RANGE. Persuaded by the contentions raised in point I, we reverse and remand for a new trial. Accordingly, we need not reach defendant's sentencing argument raised in point II. A-0101-25 2 I. A. In light of our disposition, we briefly summarize the facts adduced at the two-day bench trial. The State presented the testimony of Ivy, the two police officers who responded to the March 11, 2024 incident, an expert in forensic nursing examinations, and an expert in child abuse pediatrics. Defendant testified and presented the testimony of his forensic expert in strangulation. Ivy testified she was living with defendant, her stepbrother, her half- brother, and defendant's girlfriend at the time of the incident. Ivy stated, on that day, she stayed home from school and, at the end of the day, asked defendant for her phone so she could call her mother. A verbal argument ensued, Ivy took defendant's government identification card, and defendant struck Ivy with his fists and open hands. Ivy claimed, at some point, defendant grabbed her from behind, pulled her hoodie, was "kind of choking [her]," and "put his elbow on the back of [her] neck" while she was face down on the ground. Afterward, Ivy retreated to her room and later informed defendant she did not feel well because she ingested pills. On cross-examination, Ivy acknowledged she had attempted suicide on two prior occasions: once by using pills; once by cutting herself. A-0101-25 3 Defendant testified Ivy had been living with him for approximately fourteen months at the time of the incident. Ivy had a history of suicide attempts and was on psychiatric medication when she moved in with defendant. Defendant stated he had taken Ivy off her prescribed medication and she was "thriving" for six months after his decision. Eventually, however, defendant's relationship with Ivy deteriorated as she became "reclusive" and "agitated." According to defendant, after Ivy took his government identification, "[s]he started throwing things at [him] and started attacking [him] from that point on." Defendant acknowledged he pushed Ivy out of his room but denied he struck or choked her. Defendant stated about a half-hour later, he heard pill "bottles being opened" and "hitting the sink." Defendant claimed he broke down the bathroom door because he believed Ivy was ingesting pills. He then called police to seek aid for Ivy's potential overdose. The State's forensic nursing expert testified she examined Ivy four days after the incident and noted Ivy had petechia, which she opined was caused by pressure to the neck, but was unable to determine whether it was caused by an object or strangulation. By contrast, defendant's strangulation expert testified Ivy showed no signs of petechia. In her opinion, Ivy's bruises were inconsistent with manual strangulation and likely caused by pressure from an object. A A-0101-25 4 responding officer testified he observed scratches and nail marks on defendant's arms, back, and stomach. B. With those disputed accounts in view, we turn to defendant's jury waiver. During the March 3, 2025 pretrial conference held before the Criminal Division presiding judge, defense counsel advised the court defendant was "counseled about his right to a jury trial and . . . has elected to proceed non-jury." Counsel added, "[Defendant] has had months to consider his decision in that regard, has elected to proceed [to trial], and does want a non-jury [sic]." Turning to his client, defense counsel inquired, "Is that accurate?" Defendant responded, "That's correct, bench trial." The pretrial memorandum, executed the same day, indicates, "defendant requests non-jury trial." Each page of the memorandum was initialed by defendant. Prior to the commencement of trial on May 2, 2025, the court addressed defendant's election to waive his right to a jury trial. After defendant was placed under oath, the court engaged in the following colloquy with defendant: THE COURT: [Defendant], you were just looking at a document here a moment ago. Do you recognize this document, not just from looking at it a moment ago, but do you recognize it from having seen it previously? [DEFENDANT]: Yes, sir. A-0101-25 5 THE COURT: Is that your signature on the form? [DEFENDANT]: That is, sir. THE COURT: Did you go over all the information on this form with your attorney before you signed it? [DEFENDANT]: Yes, sir. I've signed that document, I think, previously, before. THE COURT: Oh, okay. When you signed this particular document, were you under the influence of any substance, legal or illegal, that might have interfered with your ability to understand what you were doing or your ability to make a decision? [DEFENDANT]: No, sir. I'm coherent. THE COURT: Did you discuss the contents of this document with your attorney? [DEFENDANT]: Originally, yes, sir. THE COURT: Originally? [DEFENDANT]: Yes. THE COURT: Okay. Did you understand everything he told you about it? [DEFENDANT]: Yes, sir. THE COURT: Did you understand the document? [DEFENDANT]: Yeah, waiving my rights, Your Honor, sir. THE COURT: You're waiving your right to a jury trial. A-0101-25 6 [DEFENDANT]: Yes, sir. THE COURT: And at the time that you did discuss it with your attorney, were you satisfied that you were fully -- you fully understood what the document said? [DEFENDANT]: Yes, sir, Your Honor. THE COURT: Did [defense counsel] answer all your questions about the document? [DEFENDANT]: Yes, sir. I think we pursued to go this route in advance . . . We chose to go this route much earlier in the case, Your Honor. Following this exchange, the court indicated it did not "need to read the document to [defendant]. He said he's read it twice, he signed it here." The prosecutor asked if the form was e-filed because she did not remember "going through it before" and did not "remember doing the colloquy with [defendant]." Defense counsel then offered to conduct the requisite inquiry. In response, the court stated, It's here. I'm satisfied that he's familiar with the document, that he's executed it, he's discussed it with his attorney, that he's knowingly and voluntarily, and he's not under the influence of any substance while he discussed it with his attorney. I saw him sign it in front of me right here; therefore, the court accepts the Waiver of Trial by Jury. Defendant did not object, and the trial commenced. A-0101-25 7 II. Well-settled principles guide our review. The right to a jury trial is a fundamental right guaranteed by the New Jersey and United States constitutions. See U.S. Const. amend. VI; N.J. Const. art. I, ¶ 9; see also State v. Dunne, 124 N.J. 303, 316 (1991) (explaining a "trial by jury is fundamental to the American system of criminal justice"). To maintain confidence in the criminal justice system, "[t]rial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses." Dunne, 124 N.J. at 310 (quoting Patton v. United States, 281 U.S. 276, 312 (1930)). Accordingly, a waiver of the right to trial by jury should not be presumed, State v. Campbell, 414 N.J. Super. 292, 301 (App. Div. 2010), and must be made "voluntarily, knowingly, and competently," Dunne, 124 N.J. at 317. Rule 1:8-1 governs jury trial waivers. Pursuant to the Rule: "Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial." R. 1:8-1(a). In Dunne, our Supreme Court explained, when considering a defendant's request to waive a jury trial in a criminal action, judges "should": A-0101-25 8 (1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel; (2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and (3) determine, with an accompanying statement of reasons, whether, considering all relevant factors, . . . it should grant or deny the defendant's request in the circumstances of the case. [124 N.J. at 317.] Factors relevant to the court's determination of a request to waive a jury trial include the: "gravity of the crime"; "anticipated duration and complexity of the State's presentation of the evidence"; "amenability of the issues to jury resolution"; "existence of a highly-charged emotional atmosphere"; "presence of particularly-technical matters that are interwoven with fact"; and "anticipated need for numerous rulings on the admissibility or inadmissibility of evidence ." Ibid. In Dunne, the Court further held, "[t]he sources of principled decision- making will remain rooted in a[n accompanying] statement of reasons," which "will give structure to the trial court's discretionary judgment and will soundly guide appellate review." Id. at 317-18 (citing State v. Roth, 95 N.J. 334, 363- 64 (1984)). A-0101-25 9 Two decades later, in State v. Blann, we reversed a defendant's robbery convictions following a bench trial because the defendant did not sign a written waiver as required under Rule 1:8-1(a), and the court failed to question the defendant regarding his request to waive a jury trial and state its reasons for granting the defendant's request. 429 N.J. Super. 220, 223-24 (App. Div. 2013). Instead, defense counsel informed the court he had "discussed with [the defendant] his right to a jury trial" and the defendant advised counsel "he is willing to waive his right to a jury trial in this matter." Id. at 228. Our dissenting colleague in Blann agreed "the judge's handling of the jury waiver was inadequate," but this inadequacy did not warrant reversal because the "defendant, in open court on two separate occasions, with the advice of counsel, personally and affirmatively" requested waiver of a jury trial. Id. at 235-36 (Lisa, J.A.D., dissenting). The dissent agreed both procedural requirements were missing: the defendant did not sign a required waiver and the court simply asked the "defendant to confirm that he wished to waive a jury," "engaged in no other colloquy," and "made no other findings on the record as to whether the waiver was knowing and voluntary." Id. at 237 (Lisa, J.A.D., dissenting). But the dissent was satisfied, "[t]he record ma[de] clear that [the] A-0101-25 10 defendant knew he had the right to a jury trial and that he personally expressed his wish to waive that right." Id. at 238 (Lisa, J.A.D., dissenting). The dissent in Blann explained, on appeal, "the only issue before us [wa]s whether the trial record contain[ed] sufficient evidence to support the conclusion that defendant's waiver was knowing and voluntary under the totality of the circumstances." Id. at 239 (Lisa, J.A.D., dissenting). Other considerations, such as the remaining two Dunne factors are "'primarily designed to provide assurance that the grant of the waiver will not undermine the public's confidence in the criminal justice system.'" Ibid. (quoting State v. Jackson, 404 N.J. Super. 483, 490 (App. Div. 2009) (holding "a defendant who has persuaded the trial court to grant his motion to waive the right to a jury trial may challenge that decision only if he can show that his waiver was not voluntary and knowing")). Nonetheless, the dissent in Blann recognized "the better practice is for judges in these circumstances to engage in colloquy with defendants to further be assured that, before granting a waiver, a defendant possesses a deeper understanding of the choice he or she has." Id. at 246 (Lisa, J.A.D., dissenting). Our dissenting colleague astutely "recommended that the Criminal Practice Committee consider the advisability of proposing the promulgation of an official jury waiver request form for statewide use, pursuant to Rule 1:8-1(a)." Id. at A-0101-25 11 250 (Lisa, J.A.D., dissenting). The dissent then proposed four requirements for inclusion in the revised form 2: The defendant has further been advised that (1) a jury is composed of 12 members of the community, (2) a defendant may participate in the selection of jurors, (3) all 12 jurors must unanimously vote to convict in order for a conviction to be obtained, and (4) if a defendant waives a jury trial, a judge alone will decide his/her guilt or innocence. [(Ibid. (Lisa, J.A.D., dissenting)).] Accordingly, Judge Lisa concluded "[he] would affirm defendant's conviction, without prejudice to his right to further pursue in a [post-conviction relief] proceeding" his contention that he was improperly denied his right to a trial by jury. Id. at 250-51 (Lisa, J.A.D., dissenting). The Court reversed our decision in State v. Blann "substantially for the reasons expressed in Judge Lisa's opinion." 217 N.J. 517, 518 (2014). Exercising its supervisory powers, see N.J. Const. art. VI, § 2, ¶ 3, the Court established two requirements to ensure defendants possess a full understanding of their "choice" when deciding to waive the right to a jury trial. Ibid. (quoting 2 The dissent also suggested that "[t]he Criminal Practice Committee consider the advisability of incorporating this change in Rule 1:8-1(a) itself or in the official comment to the Rule." Blann, 429 N.J. Super. at 250 (Lisa, J.A.D., dissenting). To date, the Rule has not so been revised. A-0101-25 12 Blann, 429 N.J. Super. at 245 (Lisa, J.A.D., dissenting)). Initially, a defendant must sign a "written waiver form" advising all four items suggested in Judge Lisa's dissent. Ibid. Secondly, trial judges must "engage in a colloquy with defendants that includes those four items, at a minimum, to assess the voluntariness of a waiver request." Ibid. In its decision, the Court "ask[ed] the Director of the Administrative Office of the Courts to help implement the above approach within thirty days. " Ibid. Thereafter, the Judiciary promulgated a revised jury waiver form for statewide use in criminal cases. Admin. Off. of the Cts., Admin. Directive #03- 14, Waiver of Criminal Jury Form, attach. 1 (June 27, 2014). Against these principles we are constrained to reverse defendant's convictions and remand for a new trial. There is no dispute the trial court failed to follow the Court's dictate in Blann to conduct a colloquy with defendant discussing, "at a minimum," the four requirements set forth in the waiver of rights form. See 217 N.J. at 518. The court failed to recognize its obligation to conduct such a colloquy, relying instead on defense counsel's separate obligation to advise his client of his waiver rights. However, Blann requires the trial court to decide whether a defendant understands his or her rights and is making a voluntary, knowing, and competent A-0101-25 13 waiver of those rights. A court cannot make those determinations without conducting the in-court colloquy required by Blann, during which the court can assess the defendant's knowledge of his or her rights and the implications of waiver of those rights. The importance of the court's discussing waiver with defendant is highlighted here, given the prison term imposed and the collateral consequences of a child abuse conviction. See N.J. Dep't of Child. & Fams. v. L.O., 460 N.J. Super. 1, 12 (App. Div. 2019) (recognizing "a substantiation of child abuse or neglect compels the parent or guardian's inclusion in the Child Abuse Registry"). We therefore conclude, in the present matter, the court's failure to engage in a verbal exchange with defendant to evaluate whether he understood and waived his right to a jury trial requires reversal of his convictions. Reversed and remanded. Jurisdiction is not retained. A-0101-25 14