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State v. Colombino


October 4, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FO-02-282-06 and FO-202-05-A.

Per curiam.


Argued September 11, 2007

Before Judges R. B. Coleman and Lyons.

Defendant, Gerard Colombino, appeals a February 1, 2006 order that found defendant guilty of contempt, harassment and violation of probation. After a one-day bench trial, Judge Deborah Ustas entered the order for reasons stated in her oral decision on the record. She sentenced the defendant to ninety days in jail, but stayed the sentence pending appeal.

The charges in this matter arose out of a September 28, 2005 incident. A final restraining order (FRO) was in place against defendant, which prohibited him from contact and communication with the protected parties, Lina Vaccaro and her ex-husband, Mark McGuire. On the date in question, as Vaccaro and McGuire were returning to a court parking lot, defendant slowed or stopped his car and shouted expletives at the two complainants.

Defendant now argues that the trial court violated his rights under the Sixth Amendment Confrontation Clause and the Due Process Clause of the U.S. Constitution when it excluded certain evidence. We disagree. As the Supreme Court of New Jersey has recognized:

To be sure, the right of confrontation is not absolute. In an appropriate case the right of confrontation will yield to other "'legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials." [State v. Garron, 177 N.J. 147, 169 (2003) (quoting, Chambers v. Mississippi, 410 U.S. 284, 295, 302, 93 S.Ct. 1038, 1046, 1049, 35 L.Ed. 2d 297, 309, 313)]. However, "when the mechanistic application of a state's rules of evidence or procedure would undermine the truth finding function by excluding relevant evidence necessary to a defendant's ability to defend against the charged offenses, the Confrontation and Compulsory Process Clauses must prevail." Ibid. [State v. Castagna, 187 N.J. 293, 309-10 (2006) (internal citations omitted).]

We find that defendant had an opportunity to confront his accusers, and the trial court's evidentiary rulings did not undermine this right.

One of defendant's arguments is that the judge erred by excluding evidence of Vaccaro's past drug use. A court will usually admit all relevant evidence. N.J.R.E. 402. Relevant evidence means "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The proposed evidence of Vaccaro's past drug use was of questionable relevancy. Assuming, however, that it had relevance, it was nevertheless, appropriately excluded under the applicable rules of evidence. Relevant evidence will not be permitted where, as here, its probative value is substantially outweighed by its prejudicial nature.

In that regard, N.J.R.E. 403 reads: relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

The evidence of Vaccaro's past drug use was properly barred under N.J.R.E. 403 because it is highly inflammatory and minimally probative.

Moreover, N.J.R.E. 404(b) states in pertinent part that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." Thus, it is clear from N.J.R.E. 404(b) that the defense could not present Vaccaro's record of past drug use to prove her drug use on the day in question. Defendant argues that Vaccaro's past struggle with drug addiction was probative of a motive to fabricate a claim against defendant. More particularly, defendant elaborates that he alerted Vaccaro's counselor to her drug use and that the ensuing hospitalization and the intervention of the Division of Youth and Family Services (DYFS) on behalf of her children explain Vaccaro's motive and plan to gain revenge against him. The record indicates this action occurred in the midst of a suit by defendant against Vaccaro and McGuire, so that the court was well aware of the animus between the parties. Additional evidence explaining or confirming the animus between the parties would have been cumulative and speculative.

Judge Ustas allowed defense counsel to inquire on cross-examination whether Vaccaro was under the influence of drugs on September 28, 2005. That inquiry was appropriate because it related to the witness's ability to perceive the events to which she testified. By contrast, we reject defendant's suggestion that it was error for the court to exclude Vaccaro's alleged history of lying about her past drug use. Indeed, evidence of her lying in the past would involve hearsay and could promote confusion on the issues. Evidence of her past drug use would have had little tendency to prove or disprove any fact in controversy in the adjudication of the charge that defendant violated the restraining order on the specified occasion.

Defendant also argues that the court improperly excluded evidence relating to the driving record and past arrests of witness, Mark McGuire. Here, defense counsel desired to show that McGuire was lying when he said he drove into the parking lot because his driver's license was suspended. We note that "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." N.J.R.E. 609. Rule 609 does not, however, authorize the introduction of traffic violations for this purpose. See State v. Rowe, 57 N.J. 293, 302 (1970); see State v. Pacheco, 38 N.J. 120, 128 (1962); State v. Kociolek, 23 N.J. 400, 420 (1967); State v. Landeros, 20 N.J. 69, 72 (1955). Rather, N.J.R.E. 609 only authorizes the admission of criminal convictions. State v. Jenkins, 299 N.J. Super. 61, 72 (App. Div. 1997).

"While this rule draws no distinction between crimes of dishonesty or false statement and other crimes, it is clear that it applies only to indictable offenses which are the subject of valid convictions. Neither evidence of arrests for or charges of crimes are admissible under this rule." [Id. at 73 (quoting 1991 Supreme Court Rule Committee Comment).]

Hence, regardless of counsel's intention to introduce this evidence for substantive purposes or to attack the witness's credibility, the judge rightfully barred defendant from offering it. Additionally, as Judge Ustas commented, simply because someone has a suspended driver's license does not mean that the person abides by the suspension. The status of McGuire's driving record bears little relevance to whether he heard defendant's alleged parking garage diatribe.

Finally, defendant contends the trial court's verdict was against the weight of the evidence. The standard of review for such a contention is as follows: whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L.Ed. 2d 396 (1962)).]

In this case, the trial court heard and considered the testimony of three witnesses: the defendant, Vaccaro, and McGuire. As is common, the defendant offered testimony contradictory to that of the two complaining witnesses. On the other hand, Vaccaro's testimony harmonized in all material aspects with McGuire. They agreed on the place where the incident took place, the car defendant drove, and the exact phrase the defendant muttered. This court must defer to the credibility assessment made by the trial judge. State v. Locurto, 157 N.J. 463, 474 (1999). With that in mind, we conclude that a reasonable fact finder certainly could have found defendant guilty beyond a reasonable doubt of the presented charges.

In her decision, the judge relied heavily on her evaluation of the credibility of the witnesses. She found that the State witnesses, Lina Vaccaro and her ex-husband, Mark McGuire, were not "motivated by anything other than genuine concern . . . ." Conversely, the court did not find defendant's testimony "to be credible whatsoever." Credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956). As an appellant court, we are bound to give deference to the trial court's findings of fact and conclusions of law, which will only be disturbed if they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citation and internal quotation omitted). Furthermore, "[a]ppellate courts should defer to trial court's credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474. We, therefore, find no reason to disturb the findings of the trial court.



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