On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BMA-1-14-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Winkelstein and Chambers.
As a result of two incidents in the Borough of Palisades Park, the State issued summonses to defendant Matthew Iacobino. Stemming from a May 29, 2006 incident, the State charged him with disorderly conduct, N.J.S.A. 2C:33-2b, and harassment, N.J.S.A. 2C:33-4b. Based on events that took place on June 13, 2006, the State charged him with disorderly conduct, N.J.S.A. 2C:33-2b; harassment, N.J.S.A. 2C:33-4b; driving while intoxicated (DWI), N.J.S.A. 39:4-50; and refusal to take a breathalyzer test, N.J.S.A. 39:4-50.2. Because one of the complainants was an assistant Burlington County prosecutor, the cases were tried in the Bergen County Central Municipal Court by the Presiding Judge of that court, who ordered that all charges be tried together.*fn1 The court found defendant guilty of DWI, refusal to take a breathalyzer test, and both harassment charges. The court dismissed both disorderly conduct charges.
As defendant was a second-time DWI offender, the court imposed two days in the county jail; appropriate fines, court costs, assessments and a surcharge; a two-year driver's license and registration suspension; thirty days community service; and time in the intoxicated driver resource center. On the refusal conviction, the court also sentenced defendant as a second-time offender, imposing appropriate fines and penalties, including a two-year license suspension. On the harassment conviction emanating from the May 29, 2006 incident, the court ordered defendant to serve ten days in the county jail; on the harassment conviction arising out of the June 13, 2006 incident, the court imposed twenty days in the county jail. The court ordered that all jail sentences be served consecutively, resulting in an aggregate thirty-two days in the county jail.
Defendant appealed to the Superior Court. The Law Division judge found defendant guilty of the same charges, and imposed the same penalties and sentences as did the municipal court judge. On appeal, defendant raises the following three points*fn2
PREDECESSOR DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE [OF] COUNSEL IN THAT NO MOTION WAS FILED TO TRANSFER VENUE AND/OR TO RECUSE THE TRIAL JUDGE.
THE DWI TRIAL AND THE HARASSMENT CHARGES SHOULD HAVE ALL BEEN TRIED SEPARATELY, AND FAILURE TO DO SO RESULTED IN A PREJUDICE TO THE DEFENDANT.
THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH A PURPOSE TO HARASS IN REGARDS TO THE MAY 29, 2006 INCIDENT OR THE JUNE 13, 2006 INCIDENT.
We affirm defendant's convictions, but do so without prejudice to defendant to raise his ineffective assistance of counsel argument in a post-conviction relief application.
The following evidence was elicited during the municipal court trial on November 17, 2006. The Borough of Palisades Park employed defendant, who at the time of trial was fifty-one years old, as a manager of the park snack bar and pool complex. On May 29, 2006, C.B., Jr.,*fn3 age twelve, also known as C.J., was "hanging out" with a number of his friends at the park swimming pool. He testified that while he and his friends were by the side door to the pool, defendant came out of the pool area and pushed him with both hands. C.J. described the incident:
I was standing by the outside by the rope and [defendant] said, what are you doing here. And then he pushed me and said, watch what -- I smiled because I thought he was joking, and then he said, watch where you're F'ing going -- F'ing walking.
Q: And did he make contact with you?
Q: [H]ow hard did he push you?
A: Hard enough for me to move backwards.
Q: What went through your mind at this point? How did you feel?
A: Because nothing like that has ever happened to me before and I don't know.
Q: Mr. Iacobino? And older than you?
Q: Did he seem angry or happy?
One of the minors with whom C.J. was with that day was twelve-year-old F.K. Jr., who confirmed that when defendant emerged from the door to the swimming pool, he "hit C.J. . . . with his arm." F.K. testified that defendant struck C.J. with his elbow, hard enough to make his head move. C.J. looked scared, and defendant "started cursing" at him.
Another twelve-year-old witness, B.K., also testified that defendant struck C.J. His description of what occurred varied from that given by C.J. and F.K. B.K. testified:
AL C.J. was . . . walking and they bumped into each other, and then [defendant] like pushed his shoulder up and then said, ...