Maurice A. Walsh, Jr., J.s.c.
This is an appeal from a judgment of conviction entered in the Municipal Court of Secaucus against defendant Richard McGrantham. The complaint originally charged a violation of N.J.S.A. 2A:113-8; however, this was changed to a violation of N.J.S.A. 2A:170-29 when the Hudson County grand jury refused to return an indictment on the former charge. The present charge is premised on the allegation that defendant "did by speech threaten to Kill [sic] Elaine Smith."
This appeal is in the form of a trial de novo on the record. R. 3:23-8(a). The applicable exceptions to this procedure do not exist here. At this juncture, a brief summary of the evidence adduced at the municipal court trial is called for.
At the trial the complaining witness stated that she received a telephone call at the hospital in which she was being treated, it was from a person whose voice she immediately identified as defendant's. She testified that defendant stated that unless she and their son returned to him and continued to live with him as they had been for about seven years prior to the incident, he would kill her. Defendant was despondent and indicated that he "had nothing to live for" and that he did not fear imprisonment. The witness testified on cross-examination that during the conversation (which lasted almost half an hour) defendant stated that he loved her and said "[a]ll the things that an upset lover would say * * *."
The complaining witness further testified that on at least one other occasion defendant threatened and assaulted her.
The testimony of the assault was corroborated by the complaining witness' stepmother who had witnessed the assault. Additionally, this witness testified that she overheard several arguments during which defendant threatened to kill the complaining witness.
After the State presented its case defendant testified. He admitted making a phone call to the complaining witness on the date in question but denied ever threatening to kill her. He stated that the conversation concerned the complaining witness' use of his surname although they were not married, and the fact that he would be or had been considered liable for the costs of hospitalization. He admitted stating that he would "get even" with the complaining witness by obtaining possession of his car through the judicial process.
The trial judge believed the testimony of the complaining witness. He found the testimony of defendant to be less than credible and disbelieved the testimony regarding defendant's complaints about his liability. The judge found as a fact that during the telephone conversation in question defendant made the alleged threat. He therefore found defendant guilty. The sentence imposed was imprisonment for 90 days, suspended on the condition that defendant refrain from "bother[ing]" the complaining witness.
This court is in complete agreement with the factual findings made by the trial judge. The ability of the municipal judge to observe the witnesses and assess their credibility, especially where two witnesses give divergent and uncorroborated testimony, must be given due, though not controlling, weight. State v. Johnson , 42 N.J. 146 (1964). Additionally, defendant's admission that he would "get even" with the complainant supports this finding. Thus, this court finds that defendant did in fact threaten to kill the complaining witness during the telephone conversation.
However, in order to convict defendant this court must ascertain whether such a threat is proscribed by the
statute. It must be noted that in the record there is no indication, except for brief references by counsel, as to what particular subsection of N.J.S.A. 2A:170-29 defendant was convicted of violating. The statute proscribes several different acts, and the judgment of conviction or the complaint should have specified the applicable subsection. See State v. D'Aloia , 2 N.J. Misc. 1164, 146 A. 426 (C.P. 1924). Notwithstanding this defect, the court will attempt to determine what ...