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State v. Lopez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 14, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FREDERICK LOPEZ, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BMA-009-14-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 31, 2007

Before Judges Lisa and Lihotz.

Defendant, Frederick Lopez, appeals from his conviction, after a trial de novo in the Law Division, R. 3:23-8(a), of simple assault, a disorderly persons offense, N.J.S.A. 2C:12-1a(1), and harassment, a petty disorderly persons offense, N.J.S.A. 2C:33-4c. For each offense defendant was sentenced to pay a fine of $100, $33 costs, $50 Violent Crimes Compensation Board penalty, and $75 Safe Neighborhood Services Fund assessment, which have been stayed pending appeal.

The victim was defendant's former wife, Candace Raymond. On the evening of October 25, 2005, Raymond drove to defendant's house. In her car was one of the parties' children, whom Raymond was going to drop off to stay with defendant. Raymond's mother, Carol Patrick, drove to defendant's house at the same time in a separate car. In Patrick's car were the parties' other two children. According to Raymond and Patrick, defendant approached their cars in a fit of rage, repeatedly kicked and pounded on both cars and attempted to enter them, all the time yelling and cursing in a threatening manner and demanding that Raymond open the door. At some point during the episode, the child in Raymond's car ran out of the car. No one was injured and no damage was caused to either car. Raymond and Patrick drove away from the scene to the police station, where they reported the incident and caused a complaint to be issued. According to Raymond, the episode in front of defendant's house lasted ten to fifteen minutes.

Defendant testified in his own behalf. He said the episode lasted only about one minute. He said his only purpose for seeking to enter Raymond's car was to open the trunk to get his daughter's clothes. He admitted to shouting some profanities, but said the reason was that Patrick ran over his foot.

The municipal court judge credited the testimony of Raymond and Patrick and discredited defendant's testimony. The judge thus found defendant guilty of both charges and imposed the sentence we have previously mentioned.

On de novo review, Judge Lipton applied the correct standard by making her own findings of fact based upon the municipal court record, but giving due, though not controlling, regard to the municipal judge's credibility findings. See State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). Like the municipal court judge, Judge Lipton accepted as credible the testimony of Raymond and Patrick, and she discredited defendant's testimony.

Based upon her factual findings, the judge concluded that defendant purposely engaged in a course of alarming conduct with the purpose to alarm or seriously annoy Raymond, thus constituting harassment. She further concluded that defendant purposely attempted to cause bodily injury to Raymond, reasoning that under the circumstances, defendant's attempt to enter the car in an extremely agitated state demonstrated a purpose to injure the person inside the car if he would have succeeded in opening the car door. Thus, the assault charge was sustained.

Judge Lipton imposed the same sentence as previously imposed by the municipal court judge and continued the stay of sentence.

On appeal, defendant argues that this rather brief episode was insufficient to constitute a course of conduct as required by N.J.S.A. 2C:33-4c, and that the evidence was insufficient to prove purposeful conduct with respect to either offense as necessary to prove an intent or purpose to harass or to cause bodily injury. Defendant further argues that he was denied a fair trial because the municipal court judge improperly restricted one limited aspect of his cross-examination of Raymond.

We reject these arguments. We have reviewed the trial record, and we are satisfied that the findings of the Law Division judge are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with those findings. See Johnson, supra, 42 N.J. at 162. Further, we agree with Judge Lipton's legal analysis and conclusions with respect to the proofs supporting each offense. Finally, we find no mistaken exercise of discretion by the municipal court judge with respect to defendant's cross-examination of Raymond.

We affirm substantially for the reasons set forth by Judge Lipton in her oral decision of December 4, 2006. Defendant's arguments on appeal lack sufficient merit to warrant further discussion in a written opinion. See R. 2:11-3(e)(2). The judgment of the Law Division is affirmed, and the stay of defendant's sentence is vacated.

Affirmed.

20071114

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