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State v. Pavlik

October 14, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS PAVLIK, DEFENDANT-APPELLANT.



Before Judges Lintner, Lisa and Bilder. On appeal from Superior Court of New Jersey, Law Division, Ocean County, 23-02.

The opinion of the court was delivered by: Bilder, J.A.D. (retired and temporarily assigned on recall).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2003

On August 20, 2001 defendant Thomas Pavlik was convicted in Brick Township Municipal Court of three counts of simple assault, two counts of criminal mischief, one count of harassment, and one count of unlawful possession of a weapon (a cane). A total of $4,285 was imposed as fines, penalties and costs and he was sentenced to consecutive terms of 60 days in the county jail and one year probation for each of the assault convictions. Following a trial de novo on the record below, on November 16, 2001, he was again convicted in the Superior Court where fines and penalties totaling $1035 were imposed. No jail sentence was imposed and probation was vacated.

Thereafter, on December 5, 2001, based upon those convictions, defendant's employer, Brick Township, moved before the Brick Township Municipal Court for an order of forfeiture. N.J.S.A. 2C:51-2g; see State v. Ercolano, 335 N.J. Super. 236, 242, 247 (App. Div. 2000), certif. denied, 167 N.J. 675 (2001). On April 19, 2002, following a hearing, the motion was granted and defendant's employment with Brick Township was forfeited pursuant to N.J.S.A. 2C:51-2a(2) for conviction of an offense involving or touching his position or employment. Following a trial de novo, he was again found subject to an order of forfeiture and his employment with Brick Township was forfeited pursuant to N.J.S.A. 2C:51-2a(2).*fn1

Defendant was employed as a laborer in the Streets and Road Maintenance Division of Brick's Department of Public Works. The events which led to his convictions for assault, criminal mischief and harassment arose from a violent domestic dispute between defendant and his grandfather which led to defendant's arrest and removal from his home to the hospital. Later, at the hospital, when a police officer attempted to serve defendant with a Domestic Violence Complaint and restraining order, he became agitated, belligerent, violent and had to be restrained.

Defendant appeals from both the November 16, 2001 judgment of conviction and the July 12, 2002 order affirming the forfeiture of his employment.

In his brief on appeal defendant makes the following contentions:

POINT I

THE COURT BELOW ERRED WHEN IT INCORRECTLY AFFIRMED THE CONVICTION OF MR. PAVLIK BECAUSE THE STATE FAILED TO PROVE THE MENS REA OF MR. PAVLIK WITH REGARD TO THE OFFENSES CHARGED AND THE COURT INCORRECTLY DISREGARDED MR. PAVLIK'S CREDIBLE EVIDENCE WITH REGARD TO DIMINISHED CAPACITY AND INTOXICATION

POINT II

THE COURT BELOW ERRED IN AFFIRMING THE TOWNSHIP OF BRICK'S ORDER TO FORFEIT MR. PAVLIK'S EMPLOYMENT

I.

Defendant's contentions with respect to his convictions are without merit. R. 2:11-3(e)(2). He essentially challenges the credibility findings, particularly with regard to the testimony of his expert, Dr. Martinson. Matters of credibility are within the exclusive dominion of the fact finder. State v. Butler, 32 N.J. 166, 196 (1960), cert. denied, 362 U.S. 984, 80 S.Ct. 1074, 4 L.Ed.2d 1019 (1960). See also State v. Locurto, 157 N.J. 463, 474 (1999). We are satisfied the Law Division Judge's findings and conclusions are supported by substantial credible evidence in the record. State ...


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