March 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATTHEW IACOBINO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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?
A: He shoved me.
Q: [H]ow hard did he push you?
A: Hard enough for me to move backwards.
A: couple steps back?
Q: What went through your mind at this point? How did you feel?
Q: Why were you scared?
A: Because nothing like that has ever happened to me before and I don't know.
Q: He's bigger than you?
Q: Mr. Iacobino? And older than you?
Q: Did he seem angry or happy?
A: Him or me?
Q: Mr. Iacobino?
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, watch where the F you're going.
THE COURT: He used his shoulder?
THE WITNESS: Yeah.
Q: Did you see him make contact?
Q: And what happened . . . to C.J. after [defendant] made contact with him?
A: He . . . got like pushed back and then [defendant] . . . walked away
Q: [D]id [defendant] use bad words?
Q: How many times?
Q: Okay. And how did C.J. look after this occurred? What was his reaction?
Q: All right. And what kind of force did he use? How hard did he hit C.J.?
Q: Okay. But enough to cause him to --
Q: -- step back or fall back or lose his --
Q: -- balance for a second?
Defendant provided a different version of what occurred on May 29, 2006. He testified as follows:
Well, it was about 4:30. I took a break from out behind the kitchen. I came outside the gate where we're allowed to smoke. . . . And there were a bunch of kids out there and they were jumping up and down. . . . They had not been able to get into the pool from the front gate because they were underage. And I was just standing there minding my own business and this young man had got behind me. He saw a friend through the gate that perhaps could help him get in from my understanding. And he's hopping around and all of a sudden he jumps backwards and trips over my feet, at which time I grab him between the shoulder blades to lift him up, at which time he gains his balance and skips off. . . .
Q: At that time did [C.B.] seem to be offended by your touching him?
A: Not immediately. Once he got into . . . the group, he looked at me and said, you pushed me. I said, well, I said, kid, you don't have eyes behind your head. I said, you got to be careful where you walk. So if you believe I pushed you, I apologize. But you can't come in the pool this way. Go back to the little league; go find an 18-year-old.
Next, we turn to the June 13, 2006 incident. The harassment charge alleged that, using his fingers, defendant poked a three-year-old boy, C.O., after he threw a rock at defendant's car. A number of the children present at the May 29, 2006 incident were also present on June 13, 2006.
According to F.K., as defendant drove his car in the parking lot near the snack bar, C.O. threw a rock at the car and hit it. When the rock struck the car, defendant pulled the car over, and came out "screaming and asking who the F threw the rock and a bunch of bad words." F.K. observed that defendant was angry; his hair was "messed up" and he smelled of alcohol; his speech stuttered "a little bit," and his eyes were watery.
F.K. was scared. When defendant asked who threw the rock, the group of children "were pointing to . . . [C.O.] and . . . [defendant] said that he didn't expect for him to throw a rock that far." F.K. testified:
A: [Defendant] and some girl got out of the car and they started screaming and yelling. . . . like they couldn't believe that [C.O.] threw it. And then I was standing there and I told [defendant] to go home because he was drunk and he . . . said a bad word and tried to kick the -- because I was right on my bike. . . . I tried to ride away, and he tried to kick the back of my tire, tried to kick me.
Q: Did he kick the back of the tire?
A: (No verbal response)
Q: Did he hit your tire?
Q: Now did you see him do anything with respect to [C.O.]?
A: He poked him in the head after he figured out that he really did throw the rock.
Q: Can you using your forehead, can you show the Judge how he did it?
A: He took like two fingers and pushed like that.
Q: Can you tell the force?
A: Yeah --
Q: How hard he pushed his forehead?
A: It -- hard enough that it pulled his head back, he said.
Q: [C.O.]'s head went back?
Q: How did [C.O.] respond? Could you see?
A: He was smiling thinking that he was joking around, but he was actually very serious.
Q: Who was smiling?
Q: Did he . . . cry?
A: No. He was actually like thinking he was joking, playing around.
Q: Okay. Well, did he appear scared at any time thereafter?
A: Yeah, afterwards when he came back, he was just wondering what happened and I think he figured out that it was serious.
B.K. related a similar version of what occurred. He saw defendant driving his car in the parking lot. When the rock struck defendant's car, he got out, was angry, and said "who the F threw the rock." B.K. saw defendant walk over to C.O. and "start yelling at him and then he poked him in the head."
When poked, C.O. "kicked back a little and then he hid behind his sister and he started crying."
Catherine Capicchioni, an adult, also witnessed the incident. She saw defendant drive his motor vehicle in the parking lot, going at least twenty to twenty-five miles per hour, "which [was] too fast for that area." She saw C.O. throw a rock at the car, the car stop, and defendant get out. She told defendant that "the baby threw the rock," referring to C.O. She testified that defendant was loud, yelling at the children, and was very angry when he approached C.O. Although she did not see defendant strike C.O., as a shed blocked her view, she saw him make a poking motion toward C.O. with his finger.
Capicchioni described defendant as "drunk;" he was staggering, had trouble walking a straight line, his speech was slurred and he was boisterous and confrontational. She said that when defendant left, C.O. was shaky and terrified.
After the initial confrontation with C.O., defendant drove from the parking lot. Before returning, he left a message for F.K., Sr. on his cell phone. Defendant and F.K., Sr. had previously worked together. F.K., Sr. is F.K.'s father. A CD of that cell phone message was played for the court.*fn4
The court, in rendering its opinion, summarized the contents of the message: "I saw your son down there, mother fucking little league cocksuckers threw a rock at my car. Three-year-old. I'll do what . . . I have to do. Fuck you."
Police officer Rory Tennant testified that he was dispatched to the park after Capicchioni reported defendant's confrontation with C.O. to the police. When he arrived, he saw defendant driving his vehicle in the parking lot. After defendant stopped his car, Tennant spoke with defendant, who was still seated in the driver's seat. Defendant told him that a juvenile had thrown a rock at his car and hit it. Tennant smelled alcohol on defendant's breath and observed that he was slurring his speech. The officer asked defendant to get out of the car, which he did, and as defendant walked to the back of the vehicle, he held onto the vehicle for support.
Tennant, who had known defendant prior to the incident, testified that he appeared intoxicated. He explained to defendant the field sobriety test that he wanted him to take, but he "got in [the officer's] face." Tennant testified that defendant used profanity toward him; defendant said: "I'm going to fucking go over there and solve this myself." As defendant started to walk toward a group of individuals who had gathered nearby, Tennant arrested him.
In the police car on his way to police headquarters, defendant stated, "this is fucking bullshit." At police headquarters, defendant again refused Tennant's request that he take the field sobriety test. While there, Tennant again observed that defendant's eyes were bloodshot, his speech was slurred, and his breath smelled of alcohol.
Tennant asked defendant to take a breathalyzer test, and read the New Jersey Motor Vehicle Standard Statement to him. When defendant refused to take the test, the officer read the second half of the statement, but defendant again refused. At trial, defendant had a different explanation as to what occurred on June 13, 2006. When he was leaving the park, driving his car through the parking lot, he heard "a little click" from the back of his car. He got out of the car, and asked F.K. who threw the rock. F.K. pointed to "the little kid sitting under . . . the step," who defendant later learned was C.O. Defendant denied that he acted erratically or was screaming when he got out of his car. He said he walked toward C.O., who was "cowering down under the steps," and "it was . . . obvious that he was frightened." Defendant denied that he ever came into physical contact with C.O. or reprimanded him.
Defendant left the parking lot, and called F.K., Sr. According to defendant, by that time he had become aggravated, and when F.K., Sr. did not answer his phone, he left a message.
Defendant admitted that he left the message that was played for the court.
When asked why he did not take the breathalyzer test, defendant responded:
A: I was sitting against the wall. . . . Officer Tennant sat on the opposite side of the table and I was there about two/three minutes when this green machine appeared. It was plugged in, turned on, and I was asked to blow into it.
Q: And did you provide a breathalyzer sample?
A: No, I did not.
A: Well, I believe that they didn't put a pipette on it. I said, I don't know where the end of that tube was, I'm not putting it in my mouth. I said, did you zero it out? He said, I did everything correct. Just blow into it. I said, well, I'm not doing that.
Defendant denied that the officer read him the standard statement or that he refused to take the field sobriety test, either at the park or at police headquarters. He admitted, however, that he "had a beer about 5:30" that afternoon;
Tennant arrested him at approximately 9:30 to 10:00 p.m. Substantially in light of this evidence, the municipal court judge made the following findings as to the May 29, 2006 harassment charge:
The statute [N.J.S.A. 2C:33-4] requires that there has to be an intent to harass, with purpose to harass, a subjection other to striking, kicking, shoving, or other offensive touching or threatens to do so.
I'm satisfied that Mr. Iacobino was upset that they were trying to get into an area where they didn't need to be. I'm satisfied the statement, "watch the fuck where you're going" suggests that his purpose was to harass. That's hardly a pleasant conversation. And I'm satisfied whatever it was, it's hard for me to tell whether it was the shoulder, the elbow, or the hands, but I'm satisfied that one consistent thing that the three boys testified to was that there was some intentional offensive touching. I'm satisfied that that would constitute an act of harassment, so I find the defendant guilty on the May 29th incident with respect to [C.J.].
As to the June 13, 2006 harassment charge, because defendant had testified that his girlfriend was with him in the car and could verify his story, the court drew an adverse inference from defendant's failure to call her as a witness.
See State v. Clawans, 38 N.J. 162 (1962). The court went on to make the following findings as to the June 13 harassment charges:
I don't find Mr. Iacobino's testimony to be credible. I find it to be not credible. . . .
So I'm satisfied that the three boys' version of what happened to [C.O.] is true; that he was poked; that again, "who the fuck threw the stone." [Defendant] was angry, there was an intent to harass, there was offensive conduct. I'm satisfied that the State has proved the case beyond a reasonable doubt of harassment as to [C.O.].
Defendant appealed his convictions to the Law Division. At oral argument before the Law Division judge on September 24, 2007, the parties and the court addressed only the sentencing aspects of defendant's convictions. The judge made no independent factual findings as to the substantive offenses.
The judge simply stated: "There's no question that the refusal and the DWI charges, although they're part of this appeal, I find the defendant guilty de novo and I impose the same penalties."
Municipal court decisions are appealed first to the Law Division of the Superior Court. R. 7:13-1; R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). On appeal to this court, the issue is whether the record contains sufficient credible evidence to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). Like the Law Division, we are not in a position to judge credibility, and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 471 (1999). We therefore defer to the municipal court judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
Against this background, we begin with defendant's argument that the DWI and refusal charges, and the harassment charges from the two different dates, should have been tried separately. Defendant has not supplied this court with a transcript of the proceedings in which the municipal court judge ruled on the motion for a joint trial. Nor does it appear that defendant raised this issue in the Law Division. Although defendant may have raised this issue during a probable cause hearing in municipal court, without a record of those proceedings, we are unable to determine the reasons the court consolidated the charges for trial. It is defendant's obligation to provide us with the transcript, and he has not done so. As the New Jersey Supreme Court has explained, our Court Rules require that "if a verbatim record was made of the proceedings before the court . . . from which the appeal is taken, the appellant shall, no later than the time of the filing and service of the notice of appeal, serve a request for preparation of an original and copy of the transcript . . . ." R. 2:5-3(a). If no verbatim record of the proceedings exists, "the appellant shall . . . serve on the respondent a statement of the evidence and proceedings prepared from the best available sources, including the appellant's recollection." R. 2:5-3(f).
[Cipala v. Lincoln Technical Inst., 179 N.J. 45, 55 (2004).]
Consequently, without the record of the argument before the municipal court on that issue, or a record of the municipal court's decision as to the reasons for the joinder, we are unable to conclude that the court mistakenly exercised its discretion in joining the charges for trial.
Next, we reject defendant's claim that the State failed to establish a purpose to harass with regard to both harassment charges. The crime of harassment, in pertinent part, states:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
(a) Makes . . . a communication . . . in offensively course language, or any other manner likely to cause annoyance or alarm;
(b) Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so.
A purpose to harass may be inferred from the evidence. State v. Hoffman, 149 N.J. 564, 577 (1997). "Common sense and experience may inform that determination." Ibid.
Although the Law Division judge failed to make findings as to the basis for the harassment convictions, we conclude that the court's decision that defendant committed the acts of harassment on May 29 and June 13, 2006, could reasonably have been reached on substantial credible evidence in the record.
Locurto, supra, 157 N.J. at 470-71.
The evidence shows that on May 29, 2006, the fifty-one- year-old defendant shoved or pushed and cursed at twelve-year- old C.J. The municipal court judge concluded that defendant pushed C.J. and said: "watch the fuck where you're going."
According to the judge, defendant's actions suggested that his purpose was to harass C.J.
We agree. Defendant's actions were more than simply a vexing or irksome communication. State v. B.H., 290 N.J. Super. 588, 598-99 (App. Div. 1996). Given his physical contact with C.J., his use of offensive language, and the surrounding circumstances, a fair inference is that defendant's conscious object was to annoy or alarm the twelve-year-old.
The record also shows that, on June 13, 2006, defendant poked three-year-old C.O., while asking him in an angry and confrontational manner, "who the fuck threw the stone." That conduct constitutes sufficient evidence from which a reasonable inference can be drawn that defendant's conscious object was to harass the young child.
Finally, as to defendant's allegation that he was provided ineffective assistance of counsel, we deny that argument without prejudice to defendant to raise that issue in a post-conviction relief application. See State v. Preciose, 129 N.J. 451, 459-64 (1992); State v. Abdullah, 372 N.J. Super. 252, 277 (App. Div. 2004) (when evidential hearing is required, ineffective assistance of counsel claim better addressed on post-conviction relief application than by direct appeal), aff'd in part and rev'd in part on other grounds, 184 N.J. 497 (2005).