Before Judges Kestin, Wefing and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Defendant Carmine Russo appeals from an order denying his motion for a new trial and his petition for post-conviction relief. We reverse and remand.
Russo was a member of the Newark Police Department, having attained the rank of lieutenant. He and Detectives Victor Jorge and Carmine Buonsanto were indicated in a multi-count indictment, charging them with various offenses arising out of an alleged assault which occurred during the course of an arrest of Thomas Harris. The incident occurred in May 1995.
Shortly before trial the State dismissed the charges against Jorge and Buonsanto, and downgraded the aggravated assault charge against Russo to a disorderly persons offense charging simple assault, N.J.S.A. 2C:12-1(a)(1) and N.J.S.A. 2C:12-1(a)(3). The simple assault charge was bench-tried before the Superior Court judge to whom the indictment had been assigned for trial.
At trial the State presented the testimony of Susan Benedetto, who worked on the second floor of a building at 182 Roseville Avenue in Newark. She said that on March 15, 1995, she was in a back room having lunch when she heard "a lot of noise and commotion out in the back of the next door building". She looked out the window and saw two police officers arresting the victim, Thomas Harris. She identified defendant as one of the officers. Initially, she saw the officers "[g]rabbing the man, patting him, ... yelling at him and then they took him to between the two cars that were parked along the fence, searched him well, handcuffed him, dropped him to his knees, head up against the car, and then they continued to - - then they left him there, started searching the area". She said Russo kept yelling "[w]here is it, where is it?". According to Benedetto, the victim did not attempt to resist the arrest, or struggle with the officers. She said he was handcuffed, with his hands behind his back. She testified that officers left to search the area. When they returned, the victim was kneeling against the car and defendant went over to him, "approached him on his right side, started screaming at him again, 'where is it, where is it'". The victim did not respond. She also said the victim did not struggle, or attempt to flee. She asserted that defendant picked up his right foot and kicked the victim "with a strong enough blow to really kick the man over. He kicked his right shoulder, and then the man fell on his left side, rolled onto his back, and with that, [defendant] stomped on his chest". She said defendant "stomped [the victim] so hard the man shook". She called 9-1-1, was referred to Internal Affairs, and advised Officer Cardone what was transpiring. She said the victim had a white sweatshirt on, and "there was a big footprint right on his chest, Lieutenant Russo's footprint". She claimed her view was unobstructed. She also said Mary Clair Scerbo, Robin Lightner, and perhaps one or two other people were present, although they were facing away from the window.
The State then presented the victim's testimony. He claimed he was walking down Roseville Avenue when he saw the police pass by in "some type of Jeep or Cherokee-like Jeep, staring at him 'kind of funny'". He said they got out of the Jeep and began to chase him. He ran to a back yard, and attempted to hide because he had outstanding warrants. He was found by an officer who handcuffed him. He said he was on the ground, handcuffed, and never resisted, struggled or fought with the officers. He was handcuffed behind the back. He said defendant "came like he wanted trouble" and either pushed him or punched him to the ground. He said defendant "got ... directly on my chest, both his feet," and asked where the drugs were. He said defendant was "stomping" on his chest, "not ... hard ... , but he was stomping on me to let me know he means business".
The victim conceded that he spoke to someone from Internal Affairs at the police station and said that he had not been assaulted. According to the victim, he made that statement because defendant and the other officers had advised him that if he denied being assaulted he would be immediately released. The victim testified that he was processed immediately, and released within ten minutes after he arrived at the station.
The State also presented Scerbo as a witness. She said she looked out the window, and saw two "white males searching at that particular time". She also saw a "black male" between two cars. She could not determine if he was handcuffed. She never saw "the black male attempt to flee". In addition, he was not struggling. She said she was called away and as she was walking she heard Benedetto say "oh, my God, they are kicking him".
Defendant testified that he was traveling in a Jeep on Roosevelt Avenue with Buonsanto and Jorge when they were stopped by a citizen who told them "that there was a guy with a gun by the phone booth ... on Roosevelt Avenue about three-quarters of a block behind us". Defendant was seated in the backseat. They made a U-turn and suddenly Jorge jumped out of the vehicle. Defendant followed him. He heard Jorge and Buonsanto say something about a "drug deal going down". He said the victim fled and he and Jorge pursued him. Jorge apprehended the victim and defendant observed them struggling. Defendant said the victim was cuffed and "put with his knees [sic] crossed behind his back ... in a kneeling position". He and Jorge began to search for the drugs and the gun. He heard a movement, and turned and saw the victim "attempting to get up". He went toward the victim, grabbed him, and pushed him down telling him not to move. He denied kicking the victim or stomping on his chest.
Jorge testified that as they approached the telephone booth he observed "a black male [who] fit the description. He looked like he was passing off what appeared to us upon investigation to be passing CDS to a black female". He said as he opened the door to get out of the Jeep the victim began to flee into a rear yard. He saw the victim crouched between a van and a fence. According to Jorge, the victim had something in his hands which he dropped and then began to run to the back of the yard. Jorge pursued him and apprehended him. He said the victim struggled. He said he handcuffed the victim. Russo arrived and they began to search the area. Jorge said he found packets. He heard something and turned and saw the victim attempting to get up. Defendant grabbed the victim and pushed him back down.
Buonsanto testified that he remained in the Jeep, and drove it around the block to get behind the area in case the victim was "running through" attempting to "get out the back way". He then drove back to the original location and saw defendant "holding on to the suspect". He approached and Russo gave him "custody of the suspect and advised [him] to place [the suspect] in the back of the Jeep".
The Law Division judge found defendant guilty, relying principally upon Benedetto's testimony. In making ...