Before Judges Skillman, Carchman and Wells. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 98-08-0680.
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Ferdinando Gismondi, defendant, appeals from a judgment of conviction of the petty disorderly persons offense of harassment, in violation of N.J.S.A. 2C:33-4, which "forever disqualified [him] from holding any public office." That order followed a motion filed by the State seeking forfeiture of Gismondi's position as a police officer under N.J.S.A. 2C:51-2. The sentencing judge granted the motion.
The facts emerged during a jury trial of Gismondi and a co- defendant Stephen Thayer, both police officers of East Greenwich Township, on a five count indictment charging the officers with fourth degree aggravated assault by pointing a firearm at others, second degree possession of a firearm for an unlawful purpose, fourth degree "bias" harassment, third degree terroristic threats, and fourth degree "bias" assault.
During the night of April 3 and early morning of April 4, 1998, five teenagers (aged seventeen through nineteen) were gathered outside the home of Vasti Sturdivant in West Deptford, a community adjacent to East Greenwich. Each was related to Sturdivant and to each other. They all were going to sleep at Sturdivant's house that night. Each of the boys was African- American, and the neighborhood was "predominantly black."
At trial, each of the five boys described the incident in substantially the same way. As they stood talking in Vasti's driveway, at about 1:20 a.m. on April 4, 1998, they heard tires screeching from miles away; the noise got louder as the vehicle got closer. Finally, a Ford pickup truck came into view and slammed on its brakes, went in reverse, turned to go around the block, and came back past the boys. It was "driving all crazy," very fast and "side to side." Though the boys did not see who the occupants were, Gismondi later testified that he was the driver and Thayer the front seat passenger.
Gismondi circled the block a second time, again driving very fast. Some of the boys began yelling and cursing at the truck; for example, William Holmes yelled, "what the hell are you doing?" The truck slowed but continued making a third circuit.
On its third pass, the truck stopped next to a playground abutting Vasti Sturdivant's property, and the passenger door opened, after which the boys heard gunshots, which some of them saw coming from the passenger side of the truck. Thinking someone was trying to kill them, the boys ran for cover. In the boys' view, the shots were being aimed at them, as opposed to in the air. The boys variously estimated that there were thirteen to sixteen shots fired, all in rapid succession. While dodging bullets, Jeff Holmes ran into a pole and injured himself; he was treated at a hospital and released.
Vasti Sturdivant and two neighbors generally corroborated the boys' account; they could see and hear from their windows much of what had happened. One neighbor, Fred Mills, saw the passenger (Thayer) exit the truck and say "those bitches." The boys ran into Vasti's house, she called the police.
About 1:20 a.m. on April 4, 1998, Sergeant Dobbins of the West Deptford police was dispatched to a residence to check on a report of "[g]unshots being fired in the area." He testified as to what he saw at the scene:
I found five teenagers in the park -- the area of the driveway on the side of the house. They were in the driveway, they were in a panic yelling and screaming. They were extremely upset and one of the teenagers came up to me and he stated that he was injured. Eyewitnesses reported to the responding officers that the culprits, two white males, had fired their guns in the air as they drove by twice in a Ford pickup truck. On the ground near the scene the investigating officers found a paper with Thayer's name on it, apparently a paper he had written for a college course. Based on that clue, the officers ran a Division of Motor Vehicles check, indicating that Thayer was the owner of a Ford pickup with a particular tag number; the officers broadcast an alert for that truck.
The officers' walking search of the area revealed ten spent shell casings from a .40 caliber gun. The State's ballistics expert testified that the casings came from bullets fired by the service revolver issued to Thayer. Despite an extensive search, both that night and in the daylight, they were unable to find any of the bullets from the casings or any sign of damage from the bullets.
After the incident, at about 1:41 a.m., Officer Kienholz of the Mantua police department stopped a Thunderbird being driven about 79 miles per hour by Gismondi, whom he recognized. As Gismondi appeared to be "fine," Kienholz gave him a verbal warning and let him go.
Later that morning, Lieutenant Goess of the East Greenwich police department was dispatched to Thayer's home in West Deptford in order to relieve Thayer of his service revolver. Thayer's wife awakened him, and he appeared to Goess to be highly intoxicated. After a frantic search of the house, Thayer finally found the weapon in a linen closet and gave it to Goess. Another officer relieved Gismondi of his firearm when he came to work the next morning.
Thayer and Gismondi had encountered the police in two separate incidents shortly before the shooting episode. At about 12:34 a.m. a 911 call was placed from a pay phone at a Heritage dairy store in Woodbury, a town adjacent to West Deptford. The caller (later identified by Gismondi as Thayer) asked for help because of some "loud music," to which the 911 operator replied that the police were on the way. Thayer and Gismondi drove off, but the officer dispatched to the phone, Officer Cope, stopped Thayer's truck because its horn was blowing. Cope did not realize that the truck was occupied by those involved in the 911 call. Because he recognized Gismondi (who then was the passenger), and because Thayer flashed his police badge, Cope did not question the two but drove off to further investigate the 911 call.
The second incident occurred a short time later, at about 12:50 a.m., when Officer Magee of the National Park police department, saw a Ford pickup truck parked illegally, part on and part off the parking lot of a tavern. He conducted a license tag check, which revealed that the truck was registered to Thayer.
As Magee started walking toward the truck, Thayer and Gismondi approached him. Magee recognized Gismondi and was aware that he was a police officer, and Thayer identified himself as a police officer, as well. They told Magee they had parked the way they had in order to joke with the owner of the tavern, and they complied with Magee's directive that they move the truck. Both men were cooperative and did not appear to Magee to be intoxicated. Magee decided not to issue a summons partly as a courtesy to fellow officers and partly because of their explanation for their erratic parking. Later that night, Magee realized that Thayer's pickup was the one involved in the shooting incident.
Gismondi testified on his own behalf and gave the following version of the events: On the night in question he and Thayer were celebrating Gismondi's pending job change; they began drinking about 8:00 p.m. and, riding in Thayer's Ford pickup. They went from bar to bar throughout the night. Gismondi was drinking beers, ...