State v. Lazarchick
|314 N.J.Super. 500,715 A.2d 365
|STATE of New Jersey, Plaintiff-Respondent, v. Andrew LAZARCHICK, Defendant-Appellant.
|03 September 1998
|New Jersey Superior Court – Appellate Division
Richard S. Lehrich, Cranford, for defendant-appellant.
Richard P. Rodbart, Deputy First Assistant Prosecutor, for plaintiff-respondent (Thomas V. Manahan, Union County Prosecutor, attorney; Mr. Rodbart, on the brief).
Before Judges KING, 1 KESTIN and CUFF.
The opinion of the court was delivered by
Defendant, Andrew Lazarchick, appeals from convictions for disorderly persons assault, N.J.S.A. 2C:12-1a, and petty disorderly persons harassment, N.J.S.A. 2C:33-4a, after a trial de novo on the record in the Law Division, R. 3:23-8; and from the Law Division's declination to review an order entered pursuant to N.J.S.A. 2C:51-2a requiring forfeiture of defendant's employment as a police officer. Defendant had previously been found guilty of the charges in the Elizabeth Municipal Court, where the forfeiture order was entered as a consequence of the convictions. We affirm.
The charges against defendant were contained in a cross-complaint. Defendant had issued two traffic summonses to Isidro (Isadore) Cruz, II, the 17-year old son of the complainant, Isidro Cruz. The cases were consolidated for trial in the Municipal Court with a private attorney acting as prosecutor on the Cruz complaint against defendant, and defendant's attorney acting as prosecutor of the traffic offense charges. Young Cruz was acquitted of the motor vehicle charges against him.
On July 2, 1995, defendant, a police officer with the Elizabeth Police Department, was in a patrol car driven by his partner Officer Martin Starr. The patrol car veered into a telephone pole to avoid colliding with a red car which had stopped in an intersection. The red car was driven by Isadore Cruz, II. Defendant claimed that Cruz had run a stop sign. Cruz claimed that he had not, but had merely stopped because he heard the police siren and froze when he was unable to see where the sound was coming from. Cruz stated that the flashing lights on the patrol car were off, and remained off until after the accident. Defendant claimed that the lights were on.
Defendant's testimony opened the consolidated trial on the cross-complaints. Defendant testified that Cruz did not get out of the car on his own initiative after the accident. Cruz was asked for his license, registration and insurance card; and, because he did not immediately produce them, defendant asked him to step out of the car. When he did not, defendant opened the car door on the driver's side, grasped Cruz by the left wrist, and "escorted" him out of the car and over to the patrol car, where he asked Cruz to put his hands on the trunk. Defendant stated that at one point while he was patting Cruz down, Cruz turned towards him; defendant grabbed him by the wrist and neck and forced him back onto the trunk of the car. Then, defendant seated Cruz in the rear of the patrol car because he seemed "nervous"; and defendant radioed for backup. He denied touching Cruz's wallet, claiming that Cruz gave him the appropriate documents. Within moments, backup arrived in the form of two police officers, Meola and Hurler. They took over all dealings with Cruz while defendant stayed with his partner, who had been injured in the accident. Defendant handed Officer Meola two summonses he had written charging Cruz with failure to yield to an emergency vehicle and going through a stop sign.
Cruz's version of events varied greatly from that of defendant. The young man claimed that after the police car struck the pole, he got out of his car to run over and see how its occupants were. He testified that defendant charged at him, grabbed him by the throat, and punched him in the nose. Then, defendant grabbed him by the nape of the neck and began to push him towards the police car, punching him in the back as they proceeded. When they got to the car, defendant allegedly pushed Cruz onto the trunk of the car, continuing to punch him. Cruz testified that defendant threw six or seven punches altogether. Cruz also testified that defendant was uttering angry profanities throughout, including the questions: Cruz stated that when he attempted to explain that he was on his way home from his girlfriend's house, defendant responded by remarking, "What is your girlfriend, an f'ing hooker?" Defendant patted Cruz down while Cruz was still trying to explain, then grabbed him by the back of his shirt and "firmly," but not roughly, led Cruz to the rear of the car, and had Cruz sit in the back seat. Defendant then searched Cruz's wallet, laying out its contents on the trunk of the car. Cruz was bleeding from the nose at this point. Cruz claimed that when Officers Meola and Hurler arrived, he tried to tell them how defendant had treated him, but neither would listen to him on the subject. They asked Cruz if he wanted to go to the hospital, but he declined and went home.
Officer Starr's testimony followed defendant's. Starr was disoriented during the critical events because of the impact of the accident, to the point of having been dazed or even having lost consciousness. He did not witness what transpired between Cruz and defendant. The testimony of Officers Meola and Hurler followed Starr's. They stated that Cruz appeared upset at the scene, but they denied seeing any blood, or that Cruz had a bloody nose or any other injury they perceived at the time. They acknowledged asking Cruz if he wanted to go to the hospital.
Cruz also testified that when he arrived home, he told his mother, Barbara Cruz, what had happened and showed her his bruises. Then he cleaned up, wiped the blood from his nose, changed out of his bloody T-shirt and went to bed. The following morning, his nose was still bleeding and Cruz went to the emergency room at Union Memorial Hospital.
The testimony of Barbara Cruz, Isadore's mother, corroborated that of her son, and her credibility was particularly noted by Municipal Court Judge Russell. Mrs. Cruz testified that Isadore had arrived home "hysterical" and told her "I just got beat up by a cop." She observed that his nose was bleeding and his T-shirt was bloody. Over defense objections, Mrs. Cruz related to the court what her son told her had transpired between him and defendant. She explained that she did not awaken her husband because she did not know what he might do, fearing he might get himself in trouble by reacting impulsively. Mrs. Cruz also testified about the blood on her son's pillow the next morning, and identified the bruises she had seen on her son from a photograph that was taken the morning after the incident. A hospital report from Union Memorial Hospital indicated that Cruz's nostrils showed "evidence of recent nosebleed," and Cruz's head had "contusions or abrasions."
Judge Russell found defendant guilty as charged, and acquitted Isadore Cruz of the motor vehicle violations. The judge was clear about the basis for his decision:
This comes down to a question of credibility of witnesses. Do I believe Lazarchick? Do I believe Mr. Cruz? However, ... [t]here is actually concrete evidence. There's direct testimony from [Cruz's] mother, as I said, whom I believe.... No way that woman was telling me anything that wasn't true. I have photographs showing injuries that directly contradict what Lazarchick is telling.
* * * *
This is a police officer carrying a weapon. He's carrying a gun. He's out of control. If he does this, what else could he do? This kind of a case frightens me. Five years on the police force. I get Officer Meola and Hurler coming in here, and they don't remember anything. They give me a cock and bull story about ... calling the .... ambulance because somebody seems nervous. I don't believe that. [Y]ou ask a person whether they want to go to the hospital because of the fact that they're injured.
In effect, Mr. Cruz, I can understand why he was nervous. I would have been nervous, too, if I had a police officer just smack me up against the head. I'd be upset, too, if I were 17 years old and experiencing this six months after I was driving.
Some eight weeks later, on December 12, 1996, Judge Russell, pursuant to N.J.S.A. 2C:51-2a, entered an order of forfeiture regarding defendant's employment as an Elizabeth police officer. Defendant's counsel had requested a waiver of the statutory forfeiture provision, but Acting Prosecutor Neafsey wrote to the court that the "good cause" that was the statutorily mandated prerequisite for waiver, N.J.S.A. 2C:51-2e, was not present; and he therefore declined to exercise his statutory prerogative to request it. At sentencing, on December 13, 1996, the defense moved for reconsideration of the forfeiture order, which was denied, as was defendant's application for a stay of the order. All fines, assessments, community service and probation were stayed pending appeal, however. On that same day, defendant filed a notice of appeal. An emergent application for a stay of the forfeiture order was denied by the Law Division.
The appeal was tried de novo on the record before Judge Triarsi on December 24, 1996. Defendant was found guilty of both charges. The Law Division assessed no fines as the Municipal Court had; concurrent one-year terms of probation and fifteen hours of community service were ordered, along with the costs ($30) and statutory assessments ($50 VCCB and $75 SSCP) previously imposed by the Municipal Court as to each count. On January 22, 1997, pursuant to a consent order, the sentence was modified by Judge Triarsi; defendant was discharged from probation and relieved of the community service obligation.
On appeal, defendant raises the following issues:
POINT I VARIOUS PROCEDURAL DEFECTS IN THE TRIAL BELOW VIOLATED DEFENDANT'S...
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State v. Scott
......See State v. Lazarchick, 314 N.J. Super. 500, 519 (App. Div. 1998) (finding the prejudice prong was not met where defense counsel did not object to consolidation), disapproved on other grounds by Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 570 (2002). Affirmed. I hereby certify that the ......
- State v. Lazarchick, C-455