On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA-003-02-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 30, 2009
Before Judges Collester and Fall.
Following a municipal court trial and a de novo trial in the Law Division, defendant Alfred Petrossian was found guilty of the petty disorderly persons offense of harassment, contrary to N.J.S.A. 2C:33-4a, which provides that a person commits a petty disorderly persons offense if, with the purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm. [Emphasis added.]
The municipal court judge sentenced defendant to a fine of $250; court costs of $33; a VCCN penalty of $50; a Safe Neighborhood Fund charge of $75; and that as a condition of the lower fine that all contact between defendant and the complaining party cease. The Law Division judge, imposed the same sentence. Defendant appeals.
Our standard of review in such cases is clear. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (citing State v. Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).
Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
This matter arises from ongoing difficulties between next-door neighbors that eventually resulted in them filing harassment complaints against each other in the Borough of Rutherford Municipal Court. Defendant resides directly next door to Adrian Tridel in Rutherford. On December 5, 2007, Mr. Tridel filed a complaint against defendant in Rutherford Municipal Court, alleging that on November 28, 2007, defendant "did harass Adrian Tridel by screaming profanities and spitting on him[,]" in violation of N.J.S.A. 2C:33-4a. Thereafter, defendant filed a complaint against Adrian Tridel in Rutherford Municipal Court, alleging that Mr. Tridel harassed him contrary to N.J.S.A. 2C:33-4a on November 28, 2007, providing the following description of the incident:
The defendant has intentionally, willfully, with extreme persistence, for months if not years, was used Pesticides, Insecticides, or a chemical to bring physical and emotional harm upon the [complainant]. The defendant has used such chemicals with an intent other than manufactur[ers] intended normal use for such products. The defendant has in two occasions physically sprayed the [complainant] with pesticides. Absent of [complainant's] knowledge, an eyewitness observed the defendant spraying the [complainant] from behind with an [aerosol] which later was learned was an insecticide (a fogger). The defendant for months, while hiding, sprayed chemicals toward open windows of the defendant, DEP investigations, Case # 07-10-10-1222. On November 28, 2007 the defendant sprayed massive quantities of [aerosol] based chemical into the air, downwind toward the [complainant]. The defendant was apprehended hiding behind his fence while holding a spray bottle. The [complainant] inhaled the drift of the sprayed chemicals. Later that night the [complainant] developed severe asthmatic condition and was admitted to an emergency room, whose [breathing] was only stabilized hours later by [intravenous] cortisone injections. Details of this case are on six page certified October 24, 2007 letter to Chief Nienstedt, and two page hand delivered "Later Developments" to Sgt. Farrell, November 28, 2007.
These complaints were tried jointly in Rutherford Municipal Court on June 2, 2008. The de novo appeal hearing from defendant's conviction occurred in the Law Division on October 17, 2008. The Law Division judge issued a written opinion and order on October 20, 2008, finding defendant guilty de novo of violating N.J.S.A. 2C:33-4a, and imposed the same fines and sentence as the municipal court judge. Limited to the evidence in the record, we would be satisfied that the findings of the Law Division judge were based upon substantial evidence.
However, the area of our concern in this case relates to the preclusion by the municipal court judge of defendant being permitted to call his mother as a witness. We fully appreciate that the record of the municipal court hearing is replete with admissions by defendant of using what can certainly be characterized as "offensively coarse language" toward Mr. Tridel that was "likely to cause annoyance or alarm," which is proscribed by N.J.S.A. 2C:33-4a. However, it is clear that such language, beyond a reasonable doubt, must have been uttered by the defendant "with the purpose to harass," which is integral to a finding of harassment. State v. Hoffman, 149 N.J. 564, 577 (1997); Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995). And, it is also clear that "[a] finding of a purpose to harass may be inferred from the evidence presented." Hoffman, supra, 149 N.J. at 577; see also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995). Additionally, "[c]ommon sense and experience may inform that determination." Hoffman, supra, ...