September 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM DIAZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, BMA No. 001-10-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 20, 2008
Before Judges A. A. Rodríguez and Lihotz.
Defendant William Diaz was convicted of harassment, N.J.S.A. 2C:33-4b and lewdness, N.J.S.A. 2C:14-4a in the Central Municipal Court of Bergen County and again after a trial de novo in the Law Division. Law Division Judge Eugene H. Austin imposed the same sentence as the municipal court, i.e., a $256 fine, $33 court costs, $50 Violent Crime Compensation Board (VCCB) assessment penalty and $75 Safe Neighborhood Safety Fund (SNSF), on the two counts of harassment; a $506 fine, $33 court costs, $50 VCCB assessment penalty and $75 SNSF on the lewdness count. In addition, a "one-year period of probation with community service as a component"*fn1 was also imposed. The sentence was stayed pending appeal.
At the municipal court trial, two witnesses, Christiane Soares and Lizzie Mojica, testified for the State. Soares and Mojica were Emergency Medical Technicians (EMTs) for Eden Ambulance. Defendant is the Administrative Director of Eden Ambulance. According to Soares, on October 9, 2006, defendant engaged in offensive touching, by rubbing their shoulders in the public cafeteria at the Bergen Regional Medical Center in Paramus. According to Mojica, on November 7, 2006, in Englewood, defendant exposed his erect penis to her inside the rear of an ambulance.
Defendant testified and denied the charges. He presented the testimony of two witnesses, Jinna Kim and Sean Lee. Kim is the defendant's supervisor. She was not present at either incident. Sean Lee is a dispatcher at Eden Ambulance. He denied ever seeing defendant rub the neck or inappropriately touch Soares or Mojica.
On appeal, defendant contends:
THE STATE HAS NOT PROVED ITS CASE AGAINST WILLIAM DIAZ UNDER COMPLAINT NO. 2006-001949 ALLEGING OFFENSIVE TOUCHING, SPECIFICALLY RUBBING THE SHOULDERS OF CHRISTIANE DE CAMPOS SOARES. THE COMPLAINT CHARGES WILLIAM DIAZ WITH OFFENSIVE TOUCHING, SPECIFICALLY BY RUBBING THE SHOULDERS OF CHRISTIANE DE CAMPOS SOARES AT THE BERGEN REGIONAL MEDICAL CENTER IN VIOLATION OF N.J.S.A. 2C:33-4B.
THE STATE DID NOT PROVE ITS CASE BEYOND A REASONABLE DOUBT PERTAINING TO POLICE CASE #2006-001948 WHICH ALLEGED OFFENSIVE TOUCHING OF LIZZIE C. MOJICA AT THE BERGEN REGIONAL MEDICAL CENTER ON OCTOBER 9, 2006. THE STATE DID NOT PROVE ITS CASE BEYOND A REASONABLE DOUBT REGARDING COMPLAINT #2006-001947, WHICH STATES DEFENDANT IS ALLEGED TO HAVE PERFORMED A FLAGRANTLY LEWD AND OFFENSIVE ACT IN VIOLATION OF N.J.S.A. 2C:14-4A.
THE COURT INEXPLICABLY AND SUMMARILY FINDS THAT CHRISTIANE SOARES AND LIZZIE MOJICA ARE CREDIBLE AND WILLIAM DIAZ, SEAN LEE AND JINNA KIM ARE NOT CREDIBLE AND HERE WAS A LACK OF ANY CREDIBLE EVIDENCE PRESENTED BY THE STATE.
We reject these contentions, which are in essence, a challenge to Judge Austin's factfinding and credibility assessment. Such a challenge is beyond our scope of review. Municipal court decisions are appealed first to the Law Division of Superior Court. R. 7:13-1; R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The review is de novo on the record. State v. Johnson, 42 N.J. 146, 157 (1964). 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. Ibid. Because the Law Division judge is not in a position to judge the credibility of witnesses, the Law Division judge defers to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999). See R. 3:23-8(a) on criminal trials de novo. Our review is limited to determining 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. 146 at 162. We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
Judged against that standard, we conclude that the Law Division's findings are supported by the evidence. There is no basis for our interference. R. 2:11-3(e)(2).
Defendant also contends:
THE COURT INITIALLY HEARING THE MUNICIPAL APPEAL WAS 'TROUBLED BY THE INCONSISTENCIES IN THE TRANSCRIPT' AND 'SHOCKED THAT EVENTS THAT OCCURRED IN OCTOBER AND NOVEMBER DID NOT COME FORWARD UNTIL DECEMBER.'
As noted above, we do not review the municipal court's decision. To the extent that the municipal judge made credibility findings, we must pay deference. However, here whatever misgivings the municipal court judge had, did not preclude a finding that:
[Defendant's] demeanor and his attitude while testifying also make me question his veracity, his demeaning treatment of these two women on prior occasions, the credible testimony of Lizz[ie] Mojica, the false testimony of the defendant on a variety of issues leads me to believe beyond a reasonable doubt that [defendant] did engage in lewd conduct.
Defendant also contends:
UNDER N.J.S.A. 2C:33-4B THERE IS NO PURPOSE TO HARASS ANOTHER INDIVIDUAL AS IS REQUIRED BY THE STATUTE.
We disagree. This element was established to the satisfaction of the trier of fact.
Finally, defendant contends:
IF DEFENDANT'S APPEAL IS DENIED, DEFENDANT REQUESTS THAT THE PROBATION ELEMENT AND COMMUNITY SERVICE ELEMENT BE REMOVED FROM THE ORIGINAL SENTENCE.
Defendant has provided no reason to set aside this element of the sentence. The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). The sentence is permitted by statute. Id. at 364. It is not unduly punitive. State v. Morton, 292 N.J. Super. 92, 99 (App. Div. 1996).
Affirmed. Defendant shall pay all fines and assessments and report to the Central Judicial Processing Court of Bergen County no later than October 3, 2008 to serve his sentence.