November 5, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT HWANG, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 009-1106.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Winkelstein and Yannotti.
Defendant Robert Hwang appeals from a judgment entered by Judge Lois Lipton on October 16, 2006, affirming after a de novo appeal his conviction in the municipal court of harassment, contrary to N.J.S.A. 2C:33-4b. We affirm.
On October 15, 2004, S.C. filed a complaint against defendant charging him with criminal sexual contact, contrary to N.J.S.A. 2C:14-3b. The Bergen County Prosecutor amended the complaint to charge harassment, contrary to N.J.S.A. 2C:33-4b, which is a petty disorderly persons offense. The matter was returned to the municipal court for trial. The trial took place on March 27, 2006.
We briefly summarize some of the evidence presented at trial. Defendant is a dentist and oral surgeon, who practices in Palisades Park, New Jersey. S.C. testified that on August 18, 2004, she went to defendant's office to have four wisdom teeth extracted. S.C. was nineteen years old at the time, and she wanted to have her wisdom teeth removed before she returned to college in Chicago. Defendant brought S.C. into the examining room, and placed her in the chair. She was wearing a low-cut short-sleeve shirt, a brassiere, and jeans. Defendant put an apron around S.C.'s neck. She said she was scared and cold. She started to shake and put her arms up across her chest.
According to S.C., defendant kept putting her arms down. S.C. said that defendant grabbed her right breast and started squeezing it. She thought this was a mistake because she was covered with the apron. S.C. said that she did not know what to do. Defendant grabbed both sides of her breasts and squeezed for several seconds. Defendant then gave S.C. an injection. S.C. said that she had no feeling around her teeth but she was alert. Defendant again touched her breasts and started to squeeze. S.C. was scared but remained still and had her wisdom teeth removed. After the procedure was concluded, S.C. paid the doctor with a check her mother had given to her and went to her car. She started crying.
The following day, S.C. went to an acupuncturist for treatment. She recounted what had happened at defendant's office. Later, S.C. told her parents. S.C. left to return to school in Chicago on August 26 or 27, 2004. When S.C. returned to New Jersey, she learned that her mother had stopped payment on the check that she had given to defendant for the treatment. S.C. decided to file the criminal complaint against defendant.
Defendant gave a different version of the incident. He said that when S.C. came to his office, he examined her and took x-rays. He determined that she had four impacted wisdom teeth and discussed the procedure with S.C. Defendant spoke with S.C.'s mother on the phone. He asked for $800 for the procedure but S.C.'s mother wanted a discount and he agreed to charge $700.
Defendant testified that he proceeded with the surgery. He placed S.C. in the "operating position" and put on a bib. Defendant injected a local anesthetic into S.C.'s gum. Defendant extracted two of the teeth and gave S.C. additional injections to numb the gums while doing so. Defendant noticed that S.C. was trembling and getting a bit disoriented. He stated that S.C. was bleeding. She was confused and uncooperative. S.C. covered her mouth and because he had blood on his hand, defendant used his elbow to move her hand so that he could stop the bleeding.
Defendant testified that S.C. started to "breath funny." She was still trembling. Defendant asked S.C. if she was cold and she did not respond. He said that she was almost fainting. Defendant answered that he looked for a blanket but did not have one in the office. He started manual cardiopulmonary resuscitation (CPR). Defendant said that S.C. was experiencing "respiratory arrest," meaning irregular breathing. He used his elbow to start normal breathing. S.C. was still holding her hands up. Defendant testified that S.C.'s breathing improved. She was "getting better." He then proceeded to remove the other two teeth. Afterwards, defendant gave S.C. post-operative instructions.
Before S.C. left the office, she spoke again with her mother on the telephone. S.C. filled out the check, signed it and gave the check to defendant's secretary. S.C. then left the office. The next day, defendant spoke with S.C.'s mother. She told him that she "had a financial problem" and asked him to hold the check. According to defendant, S.C.'s mother said that she was going to send her husband to the office the next day to pay half of the bill with a check and half with a credit card. S.C.'s mother did not say that she wanted to speak with him about something that happened to her daughter. S.C.'s father did not show up at defendant's office the following day.
Defendant subsequently deposited the check that had been given to him by S.C. but the check was returned because payment had been stopped. Defendant tried to contact S.C.'s mother but he was not able to do so. On September 21, 2004, defendant sent a collection letter to S.C.'s mother. On October 15, 2004, he learned that S.C. had filed a criminal complaint against him.
On cross-examination, defendant admitted that he placed his elbow on S.C.'s chest area. He said that the only reason for doing so was to stabilize S.C.'s breathing. Defendant asserted that he pressed upon S.C.'s chest area five or six times. He denied that he placed his hand on S.C.'s breast area before administering "the numbing shot."
The municipal court judge rendered his decision on April 3, 2006. The judge found S.C.'s testimony to be credible. He accepted S.C.'s statement that defendant touched her breasts on several occasions during the surgery. The judge further found that defendant's testimony was not credible. He noted that if S.C. had experienced "respiratory arrest," as defendant claimed, this would have been a serious medical condition that might lead to death.
The judge additionally found that it was not believable that defendant would not have used his hands to exert pressure on S.C.'s chest cavity merely because he had blood on his gloved hands. The judge stated that if S.C. had experienced "respiratory arrest," a call for assistance would have been made to the receptionist or 9-1-1. The judge added that it was not credible that defendant would administer CPR using his forearms, or that the surgery would have continued after S.C. had such an adverse reaction to the procedure.
The judge also found that the evidence established beyond a reasonable doubt that defendant "took advantage of the young, college student and [touched] her breasts with no legitimate purpose." The judge found defendant guilty of harassment. He imposed a fine of $506, costs of $33, a $50 assessment for the Violent Crimes Compensation Board, and a $75 Safe Neighborhood Services Fund assessment. The judge also ordered defendant to serve thirty days of community service.
Defendant thereafter sought de novo review by the Law Division. The matter was heard on October 16, 2006, and Judge Lipton placed her decision on the record that day. The judge found that S.C.'s testimony was credible and defendant's version of what had occurred was not. The judge rejected defendant's assertion that S.C. made up the allegations because she wanted to avoid paying $700 for the surgery. The judge also noted that in the circumstances it was understandable that S.C. would tell her acupuncturist about the incident before she told her parents.
The judge found defendant guilty of harassment and imposed the same fines and assessments that had been imposed by the municipal court judge; however, the judge reduced the community service to twenty days. An order memorializing defendant's conviction and sentence was entered on October 16, 2006. This appeal followed.
Defendant raises the following points for our consideration:
EVIDENCE ADDUCED AT TRIAL FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF THE PETTY DISORDERLY PERSONS OFFENSE OF OFFENSIVE TOUCHING.
THE CASE MUST BE DISMISSED AND NOT REMANDED FOR RETRIAL.
We have carefully considered the record in light of these contentions and the applicable law. We are convinced that there is no merit in the arguments advanced by defendant on this appeal. Therefore, we affirm substantially for the reasons stated by Judge Lipton in the decision that she placed on the record on October 16, 2006. R. 2:11-3(e)(2). We add the following brief comments.
Here, defendant's appeal is primarily addressed at the factual findings and credibility determinations made by the municipal court judge and by Judge Lipton. Defendant asserts that S.C.'s testimony was not credible. He points to S.C.'s delay in filing her complaint. He asserts that the "squabble" over his bill provided "ample motivation" for S.C. and her mother to make what he says are false accusations. Defendant also maintains that S.C. failed to act in a manner that would be expected from someone who had been the victim of unwanted contact. Defendant insists that at a minimum the evidence established reasonable doubt justifying his acquittal in this case.
The standard of review applicable to this appeal does not permit us to weigh the evidence and make credibility determinations as if we were deciding the matter in the first instance. State v. Johnson, 42 N.J. 146, 161 (1964). Rather, our role is to determine whether the findings of the trial court "could reasonably have been reached on sufficient credible evidence present in the record." Ibid. We must defer to the trial judges' findings when they "are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case which a reviewing court cannot enjoy." Ibid.
Moreover, our deference to findings made by trial judges is particularly appropriate when, as in this matter, "two lower courts have entered concurrent judgments on purely factual issues." State v. Locurto, 157 N.J. 463, 474 (1999). "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
As we have pointed out, the municipal court judge found that S.C.'s testimony was credible and defendant's was not. Judge Lipton reached the same conclusion. We are satisfied that there is ample credible evidence in the record to support those determinations.
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