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State v. Wishnatsky

Decided: June 29, 1990.


Grossi, J.s.c.



Defendant Martin Wishnatsky appeals to this court pursuant to R. 3:23-1 et seq. from a judgment of conviction entered against him on October 23, 1989 by the Jersey City Municipal Court. Defendant was prosecuted for actions allegedly in violation of N.J.S.A. 2C:33-7 (obstructing a public passage) occurring on June 24, 1989 in front of 710 Bergen Avenue, Jersey City, the site of Choices Health Services (hereinafter "Choices" or "clinic"), a division of Health Services of Hudson County. Defendant was arrested at the scene and charged on the complaint of Marilyn Bennett, the executive director of the Health Services agency. Defendant continues to assert that his actions should not expose him to liability under the statute because he was attempting to rescue the lives of unborn persons from death by abortion.

Upon defendant's conviction below, the municipal court imposed a fine of five hundred dollars ($500) and a VCCB penalty of thirty dollars ($30), which payment was automatically stayed by the filing of the notice of appeal. Defendant was also sentenced to one day in jail, with credit given for the partial day he had spent in custody following his arrest on the date of the incident.

At the trial de novo held before this court on Wednesday, April 25, 1990, defendant appeared pro se, as he had during the

proceedings below.*fn1 Assistant Hudson County Prosecutor Lawrence H. Posner appeared on behalf of the State.*fn2 At the close of the hearing, this court reserved its decision in order to reexamine the applicable facts and law.*fn3 This opinion amends a previous letter opinion rendered in this case which was issued by this court on June 22, 1990 and provided to the parties.

At the outset, it is important to keep in mind the scope of this court's responsibilities in conducting a trial de novo. This court's function is to determine this case anew based upon the record preserved by the municipal court below, giving due, although not necessarily controlling, regard to the opportunity which the court below had to judge the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157, 199 A.2d 809 (1964). Eight witnesses testified before the municipal court: Choices' employees Theresa Glover, Marilyn Bennett, Jennie Melendez and Margie Colon for the state, and Brother Harry

Brock, Elizabeth Hanussak, Walter Robokoff, and defendant for the defense.

Although the transcript does not contain any explicit credibility assessments by the lower court for each of the witnesses who testified, implicit in the municipal court's analysis is its impression that all witnesses were credible and that their respective testimonies were not tainted by impermissible bias or undue interest in the outcome of this case. This court similarly finds no reason to doubt the sincerity or credibility of any of the witnesses.

This court is required to carefully examine the record as preserved in the transcript in order to conduct an independent fact-finding regarding defendant's guilt or innocence of the offense as charged. State v. Ross, 189 N.J. Super. 67, 75, 458 A.2d 1299 (App.Div.1983). This court will also examine certain procedural and evidentiary rulings made by the court below which may have had an impact on the manner in which defendant was able to develop his case, since defendant asserts that the rulings denied him the opportunity to elicit necessary facts in support of his statutory affirmative defense. If this court finds that there was error below, defendant must be allowed the opportunity to supplement the record before this court issues a final decision. See R. 3:23-8(a)(1).

Once the record is found to be complete, then, if necessary, this court must exercise its independent judgment as to the appropriate sentence. State v. States, 44 N.J. 285, 293, 208 A.2d 633 (1965); State v. Tehan, 190 N.J. Super. 348, 350, 463 A.2d 403 (Law Div.1982); R. 3:23-8(e). However, this court may not impose a penalty greater than that previously imposed by the municipal court below. State v. De Bonis, 58 N.J. 182, 188, 276 A.2d 137 (1971).

In order to review the various evidentiary rulings made by the municipal court below and for the purposes of ultimately determining defendant's guilt or innocence after evaluating the

defenses which defendant has raised, this court now makes the following operative findings of fact:

On Saturday, June 24, 1989 at various times between 8:00 a.m. and 11:15 a.m., defendant was observed at 710 Bergen Avenue, Jersey City, blocking the entrance to the building by moving from side to side with his body and outstretched arms, preventing various persons from immediately entering the building. The building at 710 Bergen Avenue houses Choices, a division of Health Services of Hudson County.

Health Services of Hudson County is a family planning center which provides contraceptive, maternity, well-baby care and related counselling services for women and children. Choices is the pregnancy termination unit and is licensed by the State of New Jersey. Abortions are performed on the premises on Saturdays; counselling is also provided on Saturdays with advice given to women regarding abortion as well as prenatal care, family planning and children. Abortions were scheduled to be performed at the clinic on Saturday, June 24, 1990 and were in fact performed on that date.

Access to the clinic is accomplished by ringing an outside bell by the front door at 710 Bergen Avenue and being buzzed in by a clinic employee who has a clear sight line from inside through windows to the visitor. At least some of the visitors to the clinic on Saturdays have made previous appointments to come in on that day. The door at 710 Bergen Avenue is the only entrance used on Saturdays and was the only entrance in use for visitors on June 24, 1990.

Theresa Glover, a counsellor employed by Choices, was one individual prevented from entering the building by defendant's actions on June 24, 1989. She attempted to enter the building at 8:00 a.m. for approximately fifteen minutes until she was forced to move defendant aside with her hand. She had requested defendant to move over so she could get in and defendant did not speak or otherwise respond to her request.

Other people were behind her at that time also attempting to enter the building.

Sometime later that morning, from inside the building, Ms. Glover observed defendant preventing a female accompanied by a male from entering the clinic by interjecting his body between them and the door and moving from side to side. Eventually, after about five minutes, she saw the male lifting defendant up and putting him down on the side of the door, thereby enabling himself and his female companion to enter the building.

In response to a telephone call at approximately 10:30 a.m. on the same date, Marilyn Bennett, executive director of Health Services of Hudson County and the complaining witness, arrived at Choices within a half hour and observed defendant standing on the step immediately in front of the door at 710 Bergen Avenue. She watched as defendant proceeded to block the ingress of an arriving couple for three or four minutes by moving back and forth across the doorway.

Jennie Melendez, the clinic manager for Choices, observed defendant blocking the doorway on June 24, 1989 and preventing a number of individuals from alternatively reaching the bell to ring it or entering the building after being buzzed in. Defendant's actions required her to get up and open the door for the visitors to allow them to enter. She could clearly see defendant through the windows. She recognized defendant as having been in front of the clinic on many Saturdays bearing signs, praying and handing out paraphernalia adorned with pictures of fetal parts.

In sum, the testimony showed and defendant does not deny that on Saturday, June 24, 1989, from approximately 8:00 a.m. until the time of his arrest, he intermittently stood in the doorway of 710 Bergen Avenue attempting to prevent various persons, both employees and visitors, from entering the Choices clinic.

Defendant raised certain procedural issues during the presentation of the case below which he renewed at the hearing

before this court. Specifically, in the form of a counterclaim, defendant has requested that this matter be removed to the United States District Court pursuant to 28 U.S.C. §§ 1343 and 1447, and that equitable relief should issue in the form of preliminary restraints barring the clinic and complaining witnesses from performing abortions during the pendency of this matter with entry of a subsequent permanent injunction pursuant to 28 U.S.C. § 1343(a)(4). Additionally, defendant has made a motion for a trial by jury. These requests were denied by the municipal court below.

Preliminarily, there is no provision in the court rules of this State which permits counterclaims 0 to be filed in prosecutions such as the instant case. Pleadings in such actions are limited to a complaint, indictment or accusation if necessary, and a plea. See R. 3:10-1 (made applicable to municipal court proceedings by R. 7:1). However, since the merits of the issues raised by counterclaim were discussed during the proceedings below and argued during the hearing before this court, no prejudice will accrue to either party if this court proceeds to construe the counterclaim as if it was a procedurally proper motion.

This court notes that the controversy in the instant case concerns a defendant charged with a violation of a New Jersey statute for conduct occurring within the State of New Jersey. This criminal court has jurisdiction over the subject matter of this action, as did the municipal court below, pursuant to N.J.S.A. 2C:1-3(a)(1).

This court does not have any jurisdictional or legislatively granted authority which would permit it to transfer this action to the federal court system. Even if this court was so able to "remove" this matter to the U.S. District Court, the federal system would be unable to oversee a local prosecution of a state statute due to the 1 limitations placed upon its jurisdictional powers by the abstention doctrine. See Younger v. Harris, 401 U.S. 37,

91 S. Ct. 746, 27 L. Ed. 2d 669 (1971); LaFave & Israel, Criminal Procedure sec. 13.5 (West 1985).

Additionally, neither this court nor the municipal court below has any authority vested in it by common law, statute or court rule which would permit it to grant such injunctive relief as defendant seeks. See R. 4:52 (requiring that applications for temporary restraints be made to a civil court via an order to show cause and be supported by a sworn affidavit or verified complaint).*fn4

2 As to the request for a jury trial: both the federal and state constitutions provide for the right to a jury trial for all persons accused of "crimes" and subject to "criminal prosecutions." Defendant stands charged with a violation of N.J.S.A. 2C:33-7, which is designated as a petty disorderly persons offense. In drafting Title 2C (the state criminal code), the State Legislature distinguished crimes from disorderly persons/petty disorderly persons offenses. N.J.S.A. 2C:1-4 clearly sets forth that:

a. An offense defined by this code or by any other statute of this State, for which a sentence of imprisonment in excess of 6 months is authorized, constitutes a crime within the meaning of the Constitution of this State . . . .

b. An offense is a disorderly persons offense if it is so designated in this code or in a statute other than this code. An offense is a petty disorderly persons if it is so designated in this code or in a statute other than this code. Disorderly persons ...

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