State v. Avena
| Decision Date | 21 April 1995 |
| Citation | 657 A.2d 883,281 N.J.Super. 327 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Leonard R. AVENA, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Andrew K. Ruotolo, Jr., Union County Prosecutor, for respondent (Steven J. Kaflowitz, Asst. Prosecutor, of counsel and on the brief).
Before Judges DREIER and VILLANUEVA.
The opinion of the court was delivered by
DREIER, P.J.A.D.
Defendant appeals from a conviction of the petty disorderly persons offense of harassment by offensive touching, N.J.S.A. 2C:33-4, after a trial de novo in the Law Division. Defendant was found guilty of the charge by the Hon. Aldan O. Markson in the Kenilworth Municipal Court. The court assessed a fine of $250, court costs and penalties. After a trial de novo on the record, defendant was again convicted by Judge Spatola in the Law Division.
In September 1993, the complaining witness began work as a secretary-clerk for defendant's direct marketing company, a small, family-owned and operated printing and mailing business. The company was founded by defendant, and his son and two other employees work with him.
The complainant alleged that defendant made lewd comments and acted offensively towards her. On the second day of her employment, defendant called her into his office and proceeded to tell her she was "cheap and easy." After that, she was allegedly given a raise. Another time, defendant told her he "[liked] the way [her] rear end shook."
On September 23, 1993, approximately two and one-half weeks after she began employment, complainant and defendant had breakfast together at a coffee shop across the street from the company. Defendant invited her, and she accepted because it was his practice to take his employees to breakfast or lunch. The witness claimed that after talking about his wife, defendant then allegedly discussed an extra-marital affair he had with a former secretary, something he had talked about before.
When they returned to the company, they both worked with defendant's son and a student employee packaging CDs and cassettes for a mass mailing. The witness claimed she was then called into defendant's office, and as she walked towards a seated defendant, he grabbed her by the hips and pulled her close to him. She feared that defendant was going to try to kiss her, so she pulled away and asked him if he was crazy. She left his office and decided then not to return to work after she finished the day's work.
Defendant denied harassing complainant and giving her a raise, and his son agreed no raise had been given as evidenced by the company's time cards. He claimed that when the witness' boyfriend arrived, she was permitted to leave a few minutes before 5 p.m., the usual quitting time. Defendant and his son claimed that as complainant left she said she would see everyone tomorrow. She never returned to work.
When the witness did not come to work the day after the son had handed out the paychecks, he assumed that she had just quit because it had happened before that an employee had not returned after being paid. The witness claimed that defendant called her aunt's home about 5 p.m. on Friday, inquiring about her. Defendant claimed that was his second phone call, having called earlier at either 10 a.m., 11 a.m. or 1 p.m., and that when he called her at 5 p.m., he was told that the witness was upset and not coming to work. He said he did not call right away because he expected her to call him. Defendant did not try the second phone number, her mother's, which was provided on the employee's employment form.
Defendant was subsequently served with a complaint charging him with "offensive touching" of complainant, an alleged violation of N.J.S.A. 2C:33-4.
There was no municipal prosecutor at the trial. The municipal judge undertook questioning of the complainant, defendant and his witness. He stated There's no Municipal Prosecutor on this case, so I'll have to--I won't be the Prosecutor, but I'm going to ask questions to elicit the information that I think is significant in the case.... I'll try to pass on some objectivity.
Although defendant was questioned by the judge, the judge stated that "Mr. Avena is not going to be cross-examined."
In convicting defendant, the judge placed significance on the fact that defendant did not immediately call complainant when she did not come to work the next day even though she had the keys and was supposed to open the office. Additionally, when defendant did call her, he only tried reaching her at one of the two telephone numbers she had listed in her employment record. Using common experience, the judge inferred that not calling complainant inferred he had a guilty conscience. The judge, in assessing the witnesses' credibility, stated that complainant's testimony had the ring of truth and found that she was telling the truth beyond a reasonable doubt. He then stated: "And as far as Mr. Avena's testimony is concerned, it had a thud of not being the truth."
At the trial de novo before the Law Division, defendant claimed that the municipal judge's decision was based on "totally unsupported inferences." The Law Division judge stated that the municipal judge's "conclusion that the appellant's inaction or apparent hesitation [in phoning complainant] indicated a guilty conscience was a logical deduction drawn from ordinary experience and was not based on pure conjecture." The municipal judge had also found the complainant to be truthful even though the case was one person's word against another. The judge stated:
Such conduct toward a new employee, where there's no evidence to indicate that the type of behavior was solicited or encouraged is, indeed, circumstantial evidence of a purpose to annoy and to harass. Under subsection (b) of the applicable statute 2C:33-4, the appellant's action constituted an offensive touching of the complainant.
The Law Division judge accorded "due deference" to the credibility findings by the municipal judge and reimposed the conviction.
Defendant raises three issues on appeal.
THE LAW DIVISION FAILED TO APPLY THE PROPER STANDARD OF REVIEW.
IT WAS PLAIN ERROR FOR THE MUNICIPAL COURT JUDGE TO ACT AS BOTH PROSECUTOR AND ADJUDICATOR (Not Raised Below).
THE LAW DIVISION ERRED IN FAILING TO FIND THAT THE COMMISSION OF AN OFFENSE WAS NOT PROVED BEYOND A REASONABLE DOUBT.
We find the first and third issues to be clearly without merit, and therefore we will discuss them only briefly. R. 2:11-3(e)(2). We will, however, discuss the second issue in more detail.
The function of the Superior Court Law Division on an appeal requiring a trial de novo on the record under R. 3:23-8(a)
is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witness.
[State v. Johnson, 42 N.J. 146, 157, 199 A.2d 809 (1964).]
The judge in a trial de novo must "make his own findings of fact." State v. Ross, 189 N.J.Super. 67, 75, 458 A.2d 1299 (App.Div.1983). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function in respect of defendant's guilt or innocence." Ibid.
When we as an appellate court review the ruling of the court in a trial de novo, we must determine whether there was sufficient credible evidence in the record to have led to the judge's findings. State v. Johnson, supra, 42 N.J. at 162, 199 A.2d 809. If an appellate court determines that the finding by the trial court was
clearly a mistaken one and so plainly unwarranted ... the interests of justice demand intervention and correction ... then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.
[Ibid. (citations omitted).]
In this case, the Law Division judge went through the municipal court transcript, pointing out what facts would have led the municipal judge to convict the defendant, but she determined the case "anew on the record." The municipal judge's decision relied heavily on his assessment of the credibility of the parties. Although there was some dispute as to whether complainant got a raise, the municipal judge clearly believed that the complainant had told the truth beyond a reasonable doubt. The Law Division judge correctly gave deference to the credibility findings of the trial judge as he was the one who could judge the witnesses' demeanor and reactions.
The Law Division judge also reviewed the inference of guilt found by the municipal judge. She independently agreed that it was common experience for an employer normally to call an employee immediately where the employee had said she would return, had done an adequate job, had the keys to the workplace and did not come to work and open the office. If the employer did not, it was reasonable to infer that there was a reason for it, here, a guilty conscience.
Although most of the case is reduced to conflicting testimony, the credibility findings and inferences by the trial court were neither clearly mistaken nor "plainly unwarranted." There was sufficient credible evidence in the record for the Law Division judge again to have convicted defendant.
Defendant did not object in the municipal court to the judge questioning the witnesses when no municipal prosecutor was available, nor was the issue raised in the Law Division. Defendant raises the issue for the first time on appeal before us. An appellate court will notice an error or omission not raised below if that error or omission caused an unjust result and is thus plain error. R. 2:10-2.
This case involved a citizen complaint, brought to trial in a municipal court with no municipal prosecutor available. A municipal prosecutor...
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