June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VIN HAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 004-04-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued via Telephone Conference -- April 29, 2008
Before Judges A. A. Rodríguez and Collester.
Defendant Vin Han was initially charged with criminal sexual contact, a fourth-degree indictable offense, N.J.S.A. 2C:14-3b. However, the Grand Jury no-billed, downgraded the charge to harassment, and remanded to the Palisades Park Municipal Court. There, defendant was convicted of harassment, N.J.S.A. 2C:33-4b, a petty disorderly person's offense. The judge imposed a $514 fine, but stayed its payment pending appeal.
Defendant appealed to the Law Division. The matter was heard de novo on the municipal court record by Judge Patrick J. Roma. Judge Roma issued a written opinion convicting defendant anew and imposing the following sanctions: $356 fine; $75 Safe Neighborhood Services Fund; $50 VCCB penalty; and $33 in court costs. Payment of these fines was not stayed. We affirm.
The proofs presented can be summarized as follows. On Thursday, July 27, 2006, around 10:10 p.m., Meaghan Kinstler was jogging on Broad Avenue in Palisades Park with one of her friends. According to her, a man, later identified as defendant, grabbed her from behind and placed his hand on her buttock.*fn1 Kinstler looked at his face as he was running past her. He had a grin on his face. He ran past the bank on Broad Avenue and made a left onto First Street. Defendant was wearing a white T-shirt.
Kinstler and her friend tried to follow defendant, but they lost sight of him. They gave up looking for him and went back to Broad Avenue. About two minutes later, while they were walking on Washington Street, they saw defendant coming out of one of the houses. He was wearing a black T-shirt. Defendant said to Kinstler that, "it was all in good fun." Kinstler told him that she was calling the cops. He cursed at her and left. Kinstler called the police and gave a statement.
The police conducted an investigation. Defendant was questioned and asked to consent to his photograph being taken. He agreed. Several days after the incident, Kinstler picked out defendant's picture from a photographic array of approximately five pictures. Palisades Park Detective Michael Martini testified that he conducted the photographic lineup with Kinstler. He assembled the photo array. According to Martini, Kinstler picked out defendant's photograph from the array without wavering.
Three witnesses testified for the defense. Julian Han, defendant's father, testified that he works with his son in the father's limousine business. The day of the incident, Julian Han left the business to go home at 9:00 p.m. His son arrived home between 9:50 and 10:00 p.m. His son then left the house at approximately 10:20 p.m. There was no one outside the house when he left.
Defendant testified. He requested the aid of a Korean-English interpreter. This resulted in an adjournment of the case. Defendant denied the incident or encountering Kinstler later.
Jennifer Cheng, defendant's girlfriend, also testified with the aid of a Korean-English interpreter. According to her, defendant arrived at her home on July 27, 2006 at 10:30 p.m. He remained there until 1:00 a.m. She does not recall the color of the shirt he was wearing; or whether it was a T-shirt or a shirt with a collar.
Defendant now appeals to us, contending:
THE CONVICTION OF THE DEFENDANT-APPELLANT SHOULD BE VACATED BASED UPON THE CLEAR EXPRESSION OF BIAS BY THE JUDGE OF THE MUNICIPAL COURT TOWARD THE DEFENDANT-APPELLANT.
We disagree. This allegation is based on the fact that, upon learning that defendant had lived in the United States for several years, graduated from high school, and attended college, the municipal court judge concluded that defendant had lied about his need for an interpreter. We agree with defendant that the judge was not in a position to judge defendant's ability to testify in English, thus obviating the need for an interpreter.
However, the municipal judge's comments are irrelevant with respect to the issue on appeal.
Municipal court decisions are appealed to the Law Division.
R. 3:23; R. 7:13-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). This review is de novo on the record. R. 3:23-8(a). The Law Division makes a new decision on its own, although it gives "due regard to the municipal judge's opportunity to view the witnesses and assess credibility." State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). The standard for review in the Appellate Division is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Johnson, supra, 42 N.J. at 157, 162. Thus, our focus is on the factfinding of the Law Division judge.
Here, we conclude that the findings by Judge Roma are supported by the evidence. Id. at 162. We note that Kinstler's testimony was found to be "credible" and "unimpeachable." On the other hand, defendant simply denied that the event occurred. The testimony of his girlfriend does not establish an alibi.
The timeframe of the incident, according to Kinstler, was 10:10 p.m. Cheng did not see defendant until 10:30 p.m. Judge Roma convicted defendant, based on the testimony of all witnesses, including Kinstler's selection of defendant's photograph. This is circumstantial evidence that the incident did occur.
We agree with Judge Roma that State v. Perez, 356 N.J. Super. 527 (App. Div. 2003) is distinguishable from this case. The comments here are not, as in Perez, an expression of bias against an entire group of people who request a Spanish-English interpreter. Id. at 533. Here, the municipal court judge limited his comments to defendant. As we said before, the comments should not have been made because the judge's perception that defendant could understand and testify in English was beyond his expertise. Nonetheless, a reversal is not warranted. In short, defendant was not denied due process.
Defendant also contends:
THE CONVICTION OF THE DEFENDANT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND NOT ESTABLISHED BEYOND A REASONABLE DOUBT.
We disagree. After a review of the record, we conclude that this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).