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State v. Bruskin

May 11, 2009


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-05-00853-I.

Per curiam.


Submitted April 27, 2009

Before Judges Lisa and Reisner.

Defendant was indicted for fourth-degree contempt for disobeying a judicial order, N.J.S.A. 2C:29-9, and fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1). After a bench trial, Judge Nieves found him not guilty of the indictable offenses but guilty of the lesser-included offenses of disorderly persons contempt and criminal mischief. He sentenced defendant to one-year probation and ordered him to pay restitution of $437.12, the cost of the four tires that he slashed. The sole issue on appeal is whether the evidence was sufficient to prove defendant's guilt beyond a reasonable doubt. The evidence was sufficient, and we affirm.

Defendant and the victim, Ned Webber, were acquaintances for a number of years. They lived in the same community, and their children attended the same schools. They did not get along, and in the course of their ongoing dispute, Webber charged defendant with harassment. When the matter came before the municipal court, it was disposed of by the entry on November 2, 2006 of an order prohibiting defendant from having any contact with Webber, his wife or children, and from disseminating any disparaging information about Webber to members of the community.

Webber operated a fitness center in a local strip mall. On March 6, 2007, Webber's wife observed defendant standing outside her husband's place of business. On March 7, 2007, Webber was at work, when he saw defendant "standing by his car. He got into his car and sat there and was staring at the building for some time." When the client Webber had been working with left and went to his car, Webber saw defendant approach that client's car. Webber contacted his wife, who is an attorney, and told her of the incident. She contacted defendant's attorney to warn that defendant had possibly violated the no contact order and to urge defendant's attorney to advise defendant to comply with the order.

On the morning of March 8, 2007, Webber parked his car behind the strip mall when he arrived for work. At approximately 8:30 a.m., two employees of a deli in the strip mall observed an individual who pulled up in a car next to defendant's car. The individual got out and slashed all four tires, after which he drove away. One of the deli employees wrote down the license plate number. They reported the incident to their employer. In turn, the incident was reported to Webber, who went out and examined the damage and then called the police. The police were dispatched, according to their records, at 8:55 a.m.

The deli employees provided a general description of the perpetrator and his vehicle, and they turned over the written license plate number. The police traced the license plate number to defendant and arrested him.

At trial, defendant denied slashing the tires and presented an alibi defense. He contended he had an appointment with his podiatrist, Dr. Warren Pasternack, at 8:45 that morning, and that he was in Dr. Pasternack's office when the incident occurred. He produced a receipt reflecting a co-payment made to Dr. Pasternack at 8:52 a.m.

Dr. Pasternack testified. He had known defendant for a number of years and had been treating him regularly for diabetic foot care. He described the usual office procedure that as soon as a patient enters the office they sign in with the receptionist and immediately pay their co-pay. However, he contended he saw defendant sitting in the waiting room for about twenty minutes before his scheduled 8:45 appointment. This testimony, of course, was at odds with the 8:52 a.m. co-pay payment and the usual office procedure. Dr. Pasternack further testified that he did not treat defendant that day because defendant was ill. Nevertheless, he collected the co-pay.

The evidence revealed that defendant's home, Webber's business, and Dr. Pasternack's office are in close proximity to each other. Defendant's home is "a little over a mile" from Webber's business, which, in turn, is approximately 3.7 miles from Dr. Pasternack's office. The State produced a witness who established that the 3.7 miles can be driven during the time of day that these events occurred, traveling within the posted speed limits, in about seven or eight minutes. Thus, there was sufficient time for defendant to have slashed the tires at about 8:30 and gotten to Dr. Pasternack's office by 8:52.

Judge Nieves found the two deli workers very credible, noting that they had no interest in the matter, did not know the parties involved, and "were not part of this drama that's going on between two . . . families in our community." The judge found Dr. Pasternack's testimony incredible. He also found defendant incredible.

We will not interfere with the factual findings of a judge sitting without a jury, particularly involving credibility determinations, so long as the findings could reasonably have been reached based upon substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). Based upon his credibility assessments, we defer to the trial judge's rejection of defendant's claim of innocence and his alibi defense. From our review of the record, we have no hesitancy in concluding ...

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