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State v. Avena

April 21, 1995


On appeal from the Superior Court of New Jersey, Law Division, Union County.

Approved for Publication April 21, 1995

Before Judges Dreier and Villanueva. The opinion of the court was delivered by Dreier, P.j.a.d.

The opinion of the court was delivered by: Dreier


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 ...

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