Opinion
DOCKET NO. A-0344-12T3
06-06-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD LYNCH, Defendant-Appellant.
Miles Feinstein argued the cause for appellant. Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and St. John.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-40-12.
Miles Feinstein argued the cause for appellant.
Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief). PER CURIAM
Defendant Richard Lynch appeals from a judgment of conviction and sentence of a $250 fine and $33 in court costs after his trial de novo for harassment. N.J.S.A. 2C:33-4(a). We affirm.
I.
On October 10, 2010, defendant was charged by Rutherford Police Officer William Sommers with criminal trespass (fourth degree), contrary to N.J.S.A. 2C:18-3(a), and with harassment (a petty disorderly persons offense), contrary to N.J.S.A. 2C:33-4(a). The Bergen County Prosecutor's Office amended the criminal trespass charge to defiant trespass contrary to N.J.S.A. 2C:18-3(b) (a petty disorderly persons offense) and remanded the matter to municipal court.
The record discloses the following facts and procedural history adduced from the trial de novo in the Law Division on the record developed in the municipal court.
On July 12, 2011, defendant made a motion for a change of venue, which was granted, because he had filed an internal affairs complaint against the police officers involved in his arrest. Prior to trial, defense counsel made requests for discovery, some of which was received by counsel in August. Defendant was arraigned in Rutherford Municipal Court on October 19, before Judge Stroedecke. Defendant appeared without counsel and waived a reading of the charges. On November 16, defendant appeared with counsel before Judge Sicari in South Hackensack Municipal Court for trial.
At trial, the prosecutor called witnesses, Kristen Morrell and Rutherford Police Officer David Dovalo. Defendant did not testify or call any witnesses. The record developed in the municipal court discloses the following facts.
On October 9, 2010, Kristen Morrell was returning home, being driven in her car by defendant. They argued, and "he was driving erratically, speeding." Defendant pulled into the parking lot of a café. Morrell "grabbed [her] keys out of the ignition" and got out of the car. She told defendant that she wanted "nothing more to do with him." Morrell left defendant at the café and drove to her apartment in Rutherford.
Morrell resided on the top floor of a three-story apartment building, and there was a fire escape located outside her living room window. Two separate keys were needed to access her apartment: one to gain entry into the building's lobby and one to gain entry into her apartment. A call box was directly linked to the residents' home phone lines. At the time of the incident, Morrell lived alone, and she had previously provided defendant a copy of her apartment keys, but she had since changed the locks.
Morrell arrived home at approximately 9:00 p.m., and defendant arrived at Morrell's apartment around 10:00 p.m. He began knocking on Morrell's apartment door explaining that he needed to retrieve his son's football jersey. Morrell did not give defendant access to her apartment building. Morrell opened the door and attempted to walk defendant down to the parking lot to retrieve the jersey from her car. Instead of proceeding to the car, defendant "walked into [her] apartment and wouldn't leave."
Defendant went into Morrell's bedroom and laid down on her bed. Morrell's first floor neighbor heard the commotion and came up to the apartment to "calm the situation down." Morrell repeatedly asked defendant to leave the apartment and eventually, with the help of her neighbor, defendant was escorted out of the apartment. Morrell followed defendant and the neighbor outside and retrieved the football jersey from her car. Defendant then left and Morrell went to bed for the evening.
At approximately 3:00 a.m., Morrell was awakened by a "very loud pounding" on her apartment door. She heard defendant calling her name and demanding that she open the door. Morrell did not respond, and after a few minutes the knocking stopped. Defendant then began calling Morrell's phone on the building's call box from the lobby. Defendant also buzzed Morrell approximately twenty times from the call box. After the calls stopped, Morrell heard the ladder from the fire escape being pulled down, and she called 9-1-1.
As she was on the phone with the dispatcher, defendant made his way up the ladder and began banging on Morrell's window. The dispatcher told Morrell not to speak with defendant and informed her that officers were being dispatched. Morrell asked defendant to leave. He refused and insisted she open the window to let him into the apartment.
Rutherford police officers, Sommers and Dovalo, arrived on the scene shortly thereafter. Sommers was the first to arrive. Morrell stated that Sommers saw defendant on the fire escape, put a flashlight on him, and demanded that he get down from the fire escape. When Dovalo arrived, defendant was climbing down from the fire escape and was between the second and third floors. Defendant then left the area by foot and Morrell went to bed.
At 6:00 a.m., Morrell was again awakened by the sound of what she believed to be defendant's tow truck driving past her apartment building. Defendant then began calling Morrell's phone persistently on the building's call box, but Morrell refused to answer. She then heard a tapping sound on her window. She observed defendant on the ground level throwing pebbles at her apartment window. Immediately thereafter, defendant began climbing up the fire escape to Morrell's apartment and she called 9-1-1. Defendant again appeared at Morrell's window and asked her to open it and let him in stating, "[t]he police are going to come. I don't want to get in trouble."
Sommers and Dovalo again responded to the scene and observed defendant on the fire escape. The officers demanded that defendant come down from the fire escape and they arrested him.
The municipal court judge found Morrell's testimony to be credible and consistent. He found defendant guilty of harassment, but not guilty of criminal trespass. Defendant appealed his conviction to the Law Division. After a trial de novo on the record developed in the municipal court, the Law Division judge found defendant guilty of harassment. The judge determined that the communications made by defendant occurred during "extremely inconvenient hours and would cause annoyance." The judge imposed the same fines and penalties as imposed by the municipal court. It is from that conviction that defendant appeals.
On appeal, defendant presents the following arguments for our consideration:
POINT I
THE LAW DIVISION FINDING OF GUILT DE NOVO SHOULD BE REVERSED AS TO THE HARASSMENT CONVICTION AND A FINDING OF "NOT GUILTY" SHOULD BE ENTERED IN THE INTERESTS OF JUSTICE AS REASONABLE DOUBT EXISTS AS TO DEFENDANT'S GUILT.
POINT II
THE DEFENDANT'S BRADY AND GIGLIO RIGHTS AND DUE PROCESS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL WERE VIOLATED BY THE FAILURE OF THE STATE TO PROVIDE THE 9-1-1 TAPE OF THE ALLEGED VICTIM'S CALL.
POINT III
THE CONVICTION MUST BE REVERSED AND THE COMPLAINT DISMISSED SINCE THE DEFENDANT WAS NEVER PROPERLY SERVED WITH THE SUMMONS/COMPLAINT IN VIOLATION OF HIS DUE PROCESS RIGHTS.
POINT IV
JUDGE SICARI'S EX PARTE DETERMINATIONS VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS MANDATING A REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).
POINT V
THE CONVICTION MUST BE REVERSED AND THE HARASSMENT COMPLAINT DISMISSED BECAUSE THE OFFICER DID NOT SIGN THE COMPLAINT (NOT RAISED BELOW).
POINT VI
THE DEFENDANT WAS DENIED HIS STATE AND CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION (NOT RAISED BELOW).
II.
Our review of the findings of fact made by the Law Division is limited. We defer to the trial court's findings when those findings are supported by substantial, credible evidence in the record. State v. Stas, 212 N.J. 37, 49 (2012). We also defer "to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We owe no deference, however, to either the trial court's interpretation of the law or to its determination of the legal consequences that result from its fact-finding. Stas, supra, 212 N.J. at 49. In an "appeal from a de novo trial on the record, [the appellate court] consider[s] only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citation omitted).
Defendant contends that there is insufficient evidence that he had the "purpose" to harass and the State has not demonstrated that he possessed a conscious objective to alarm or annoy. Instead, defendant argues his purpose was not to harass Morrell, but rather to retrieve his son's football jersey.
N.J.S.A. 2C:33-4(a) provides that a person commits a petty disorderly persons offense if, with purpose to harass another, he:
Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.We note that "courts must consider the totality of the circumstances to determine whether the harassment statute has been violated." See State v. Hoffman, 149 N.J. 564, 577 (1997) (holding that the purpose to harass required "may be inferred from . . . [c]ommon sense and experience").
[N.J.S.A. 2C:33-4(a).]
Defendant's conduct on October 9, 2010 into the early morning hours of October 10, in repeatedly calling Morrell, throwing pebbles against her window, pounding on her door, requesting entry to her apartment through the window, ascending her fire escape, and communicating with her through the window, all at extremely inconvenient hours, demonstrates defendant's purpose to harass Morrell.
Defendant next contends that he never received recordings of the 9-1-1 calls Morrell made to the police and therefore the charge should have been dismissed. However, defendant acknowledges that his discovery requests were not sent to the Rutherford police until September 29, 2011.
While defendant has a constitutionally protected right to request and obtain from the prosecution evidence that is either material to the guilt of defendant or relevant to the punishment to be imposed, this right is not without limit. State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985). Where there has been suppression, loss or destruction of physical evidence in a criminal case, the court must consider three factors in determining if a due process violation occurred: "(1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; and (3) whether defendant was prejudiced by the loss or destruction of the evidence." Id. at 479 (internal citations omitted).
The defendant bears the burden of proving bad faith. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S. Ct. 1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004). To establish bad faith, this court has held
that there must be a finding of intention inconsistent with fair play and therefore inconsistent with due process, or an egregious carelessness or prosecutorial excess tantamount to suppression. In the absence of these conditions, the right of the public to its day in court in the prosecution of properly found indictments should be forfeited only if otherwise there would be manifest and harmful prejudice to defendant.
[State v. Clark, 347 N.J. Super. 497, 508-09 (App. Div. 2002) (citations omitted).]
Evidence is "material" only if there is a "reasonable probability" that the disclosure of the evidence would have changed the result of the proceeding. State v. Mustaro, 411 N.J. Super. 91, 101 (App. Div. 2009). To be material, the "evidence must both possess an exculpatory value that was apparent before [it] . . . was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d 413, 421-22 (1984).
Defendant attempts to establish the materiality of the 9-1-1 tape, which had been deleted purportedly due to the passage of time, because it is defendant's theory that Morrell had a close relationship with another Rutherford officer and she called that officer to assist her rather than going through the 9-1-1 operator, as she testified. We do not disagree that such evidence, if true, may have been marginally relevant to Morrell's credibility. However, the question is whether the deleted tape was material. There is no reasonable probability that if the facts were as defendant asserts it would have changed the result.
If Morrell had called another officer for help, that fact did not have any exculpatory value to the defendant. Further, defendant has proffered no evidence rebutting the State's explanation for the electronic deletions. No bad faith will be found where destruction of evidence occurs "as a matter of routine." State v. Reynolds, 124 N.J. 559, 569 (1991). Having failed to demonstrate the State's bad faith, there was no abuse of discretion by either the municipal judge or the Law Division judge in denying defendant's motion to dismiss the charge.
Defendant further argues that the conviction must be reversed and complaint dismissed as he was never properly provided a copy of the charges. We find this contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We only add the following comments.
First, the State submits defendant was properly served via mail. However, even if defendant did not receive the complaint- summons via mail, he was still properly served in the Rutherford municipal court at his first appearance. Defendant's first appearance was before municipal court Judge Stroedecke on October 19, 2011, and he was personally furnished with copies of the complaint-summons in accordance with Rule 7:3-2(a). The judge addressed defendant's concern regarding his receipt of the summons and complaint in the following colloquy:
COURT: When you report there you need to bring with you a copy of the complaint, which you say you have not received and you will receive now. . . .Furthermore, during the de novo appeal before Judge Austin, defense counsel noted that defendant was served with the complaint-summons at the October 19, 2011 first appearance.
These are a copy of the originals, so this would go to him. There's also a second charge. It's a 2C:33-4A. There are two summonses. Summons S-2010-170 and S-2010-171. Okay. I'm going to give you a form here to sign. It says that you've received a copy of it, and give you the summonses which you'll be served with right here in court.
DEFENDANT: Okay. Thank you, your Honor.
Defendant insists that the municipal court judge erred by determining ex parte whether defendant was properly served with a copy of the complaint. Judge Sicari informed the parties at the hearing on November 22, 2011 that he would rule on the pending defense motion regarding service of process after he listened to the compact disc (CD) of the initial court proceedings before Judge Stroedecke. Defendant urges that the letter he received dated December 16, 2011 from the South Hackensack municipal prosecutor, advising him that Judge Sicari had ruled on the record that defendant had been properly arraigned, was a violation of his due process rights. Defendant also contends that the municipal court judge committed "plain error" by ruling ex parte.
On the final day of trial, Judge Sicari possessed a CD of defendant's arraignment, but was unable to play it on the court's computer system. He attempted to listen to the contents of the CD in his car, but indicated that the disc contained nearly three hours of proceedings. The judge informed both parties that he intended to take the CD with him and listen to it in his office.
The judge stated that, "[i]f counsel would like to hear it, we can have a conference call." Neither party expressed interest in reviewing the CD. At the end of the trial, the judge informed all parties that he would rule on the motion to dismiss based on a lack of service during sentencing.
On December 16, 2011, the judge ruled that defendant was properly served with a copy of the charges in court when he was arraigned. That ruling was entered outside of the presence of defendant and his counsel. Thereafter, a South Hackensack municipal prosecutor sent a letter to defense counsel advising him of the judge's ruling.
We hold that the municipal court did not commit reversible error in entering its ruling on the pretrial motion in defendant's absence. Because the motion centered on questions of law, defendant's presence was not constitutionally required. We also find no reversible error in the judge communicating his ruling to the prosecutor in the absence of defense counsel.
Defendant next argues that, because the harassment complaint lacks Sommers' signature and only contains the officer's typed name, it is defective requiring reversal of the conviction. Defendant does not contend that the summons was not authorized by Rule 7:3-1(b), permitting a summons to be issued by a law enforcement officer.
Rule 7:2-5 provides that "[n]o person . . . appearing in response to a summons shall be discharged from custody or dismissed because of any technical insufficiency or irregularity in the . . . summons, but the . . . summons may be amended to remedy any such technical defect." Similarly, Rule 7:14-2 permits amendments to "any process or pleading for any omission or defect therein or for any variance between the complaint and the evidence adduced at the trial[.]"
The plain language of both rules indicates that the State should be permitted to amend the unsigned summons, which functions as both the process and pleading. However, this issue was not raised before either the municipal court or the Law Division. We have nevertheless considered defendant's contention and conclude that it is entirely without merit.
We note our courts generally have been reluctant to view errors in a traffic ticket, complaint, or summons as fatal to the prosecution when the alleged insufficiency did not detract from the intended purpose of the challenged instrument and did not prejudice the rights of the defendant. State v. Latorre, 228 N.J. Super. 314, 319-20 (App. Div. 1988); see also State v. Vreeland, 53 N.J. Super. 169, 173 (App. Div. 1958) (refusing to find traffic complaint invalid for failure to specify town because defendant suffered no prejudice nor risk of double jeopardy).
Defendant does not contend that the absence of the signature interfered with his defense on the merits. Nor does he contend that the unsigned summons and complaint did not notify him adequately of the charges alleged against him and of the time, place, and date of his required court appearance. As the Court noted in State v. Fisher, 180 N.J. 462, 472 (2004), with regard to an unsigned traffic ticket, "[t]hat argument amounts to precisely the sort of exaltation of form over substance that our courts have properly rejected." We agree, and conclude that the absence of the officer's signature does not mandate a reversal of defendant's conviction.
Finally, defendant asserts, for the first time on appeal, that trial counsel was constitutionally ineffective, requiring a reversal of his conviction. That record before us is inadequate to evaluate defendant's ineffective assistance of counsel claim, which would require information outside of the record. That claim should be determined in a post-conviction relief proceeding. See State v. Hess, 207 N.J. 123, 145 (2011).
We discern no reason to disturb the Law Division judge's determination that defendant was guilty of harassment beyond a reasonable doubt.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION