October 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFRED PETROSSIAN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, 149 N.J. at 577; see also State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978). Again, we would be satisfied that the record of the municipal court proceeding, as far as it goes, fully supports an inference of "purpose to harass" by defendant.
At the commencement of the June 2, 2008 hearing, defendant addressed the municipal court judge, as follows:
Respectfully bringing to the attention of the Court that a week - - ten days before this proceeding, upon receiving the notice that the court date had been scheduled - -advanced, I notified the Court that the key witness associated with this case, absent of her presence, all I have is hearsay. I cannot present [a] credible case as it should be.
Consequently, I begged the administrators to postpone this case until -- by five days to ten days until such time [as] the witness can be made available. But I was told that is not - - I should discuss it at the court, or that was denied to me.
Upon further inquiry by the judge, it was determined that defendant was referring to his mother, who resided with him, as the witness; that she was in Las Vegas, Nevada, having had an advance airplane reservation and had left New Jersey the night before the hearing. Upon further questioning of defendant by the judge on the necessity or importance of that witness, the defendant stated "her testimony will have a strong bearing as far as my innocence is concerned." The judge decided to proceed with the hearing, stating "we may reserve in some ways to hear her testimony at a later date depending on how the rest of the day goes."
After hearing testimony from Adrian Tridel; Debra Sperling, Mr. Tridel's wife; and defendant, the judge noted that there were additional witnesses in the courtroom and that Mr. Tridel's privately-retained counsel had another pressing matter today that he needs to be at at 1:30 and it is just coming up on 1 o'clock, we've heard the... major testimony from the... two defendants and Ms. Sperling. I... know we have some neighbors, and they've been greatly inconvenienced by having to come here today, but I... don't know that we can continue on today because [Mr. Tridel's counsel] needs to continue on. Can we get an estimate of what kind of time is still going to be needed as far as taking the remainder of the testimony?
After Mr. Tridel's counsel replied he had two more witnesses, each probably taking approximately five minutes, the judge addressed defendant, asking when his mother would be returning from Las Vegas. Defendant replied that she would be back by next Monday morning.*fn1 The judge then engaged in a colloquy with Mr. Tridel's counsel, the municipal prosecutor, and the court clerk concerning a possible date to continue the matter. Ultimately, the judge decided to proceed with the witnesses present, who, indeed, were brief, consisting of testimony from Joseph DelSontro, Beth Margey, and Frank Nunziato, all of whom who lived in the same neighborhood as defendant and Mr. Tridel. Although none of those witnesses observed any interaction between defendant and Mr. Tridel on November 28, 2007, they testified favorably toward Mr. Tridel, relating incidents concerning defendant's behavior that they had observed prior to that date.
At the conclusion of the testimony from those three witnesses, the judge stated "I've heard enough testimony to make a ruling." At that point, defendant stated to the judge, "[y]our Honor, the key witness - - the key witness who is not -- she cannot appear. That - - without, all I have is hearsay." The judge replied to defendant, "I'm ready to make a ruling. I advise both parties if they are dissatisfied with the ruling that I am about to make, they are free to file an appeal" by June 22, 2008. The judge then proceeded to recite the testimony presented, and found defendant guilty of the harassment charge based on the following findings:
I find that the statements that were acknowledged by Mr. Petrossian based on the allegations of the cursing incident on October 2nd and November 28th I find them to be credible and that they did happen and that they were done in a manner reasonably with a intent to harass Mr. Tridel and Ms. Sperling.
Without any corroborating evidence, I don't find that there is anything to corroborate the spitting incident. But the harassment nature of the preceding events and of what took place on that day that was admitted to by Mr. Petrossian is enough for me to enter a guilty finding on that specific charge.
Following the issuance of the judge's oral decision, defendant stated, "[y]ou didn't hear the witness - - the eye witness." The judge proceeded to sentence defendant. Following imposition of the sentence, defendant again stated, "[y]ou have denied me... the witness - - the key witness. You have denied the key evidence from being introduced into this court." The judge again explained to defendant his right of appeal.
On his de novo appeal in the Law Division, defendant again raised the issue of the preclusion of testimony from his mother.
In addressing the issue in her written opinion, the Law Division judge stated, in pertinent part:
Defendant asserts that all of the above incidents were instigated by Mr. Tridel intentionally spraying insecticides in his direction or directly on him. Defendant asserts that the municipal court judge erred in not adjourning the hearing for the following week when defendant's witness would be back from Las Vegas, Nevada. The witness, defendant's mother, left the day prior to the court hearing. Defendant claimed that his witness had seen their neighbor, Adrian Tridel, intentionally spray insecticide on defendant's back while reaching over the fence that divided the properties and would testify accordingly. It is the defendant's position that his behavior was provoked and, therefore, the requisite element of intent or purpose to harass his neighbor did not exist. The municipal court, after considering the probative value of Mr. Petrossian's witness, determined that an adjournment would not be necessary for the court to make a determination. In light of defendant's admission to having committed the acts as alleged by Adrian Tridel and his family, between October 2, 2007 and November 28, 2007, the municipal court found the defendant's behavior purposeful and intentional and entered a finding of guilt against the defendant.
The Law Division then conducted an independent analysis of the testimony and evidence presented, finding that the defendant had the requisite intent to harass Mr. Tridel and his family in satisfaction of the second element of N.J.S.A. 2c:33-4 which requires the intent and purpose of the communication to harass another. As it was well within [the municipal court judge's] discretion, it is also within this court's to consider all of the evidence presented at trial, including defendant's obscenity laced tirades to infer such intent. See State v. Hoffman, 149 N.J. 564, 577 (1997) (holding that defendant's intent to harass "may be inferred from the evidence presented").
The judge also concluded "that the defendant was not merely venting his frustration or irritation at the situation, but rather he was, by his own admissions, specifically directing offensively coarse language at Mr. Tridel, in a manner that was threatening and intimidating." The judge found that the municipal court judge weighed the credibility and probative value of the witnesses pertaining to the issue of defendant's intent to harass and had "determined that the testimony of the witness would have had no impact on the court's decision finding Mr. Petrossian guilty of harassment."
The Law Division judge also found "that the nature, content and manner of the defendant's admitted communication with Mr. Tridel rose to such a degree that it was likely to cause annoyance[,]" thus satisfying "the third element of N.J.S.A. 2C:33-4 which requires the communication to be of such an egregious nature that it is likely to cause annoyance or alarm."
As we have already noted, based on the existing record, we find that the findings of the Law Division judge were based on substantial evidence contained in the record. Isolated by the existing record, and given the credibility findings made, defendant's conduct was outrageous and would clearly warrant a finding of harassment. We also cannot refrain from noting that our review of the municipal court transcript demonstrates the municipal court judge exercised a great deal of patience and restraint in dealing with defendant's constant interruptions; his spontaneous outbursts and attempts to contradict witnesses who were in the process of testifying; and the accusatory nature of his comments, despite repetitive warnings by the judge to refrain from such conduct.
Notwithstanding, we find error in the form of a misapplication of discretion by the municipal court judge in the denial of defendant his right to call his mother as a witness. Knowing that his mother would be away on the scheduled trial date, he requested an adjournment and was denied, being directed to raise the issue at the hearing. He did, and it appeared at first that the municipal court judge would be scheduling another hearing to complete the testimony and evidence in the case. We fully agree that defendant's own admissions, standing alone, warrant a finding, beyond a reasonable doubt, that the language he used was "offensively coarse" and was "likely to cause annoyance or alarm." However, the court deprived itself of hearing from what defendant has described as an actual eyewitness of the interaction between defendant and Mr. Tridel on the focal date, November 28, 2007. Whether that testimony would have had the type of credibility and probative value that would have factored into the calculus in the determination of defendant's "purpose to harass," when weighed with all of the other evidence, is unknown.
In State v. Duncan, 376 N.J. Super. 253, 256 (App. Div. 2005), we held "that defendant's venting of his frustration to the 9-1-1 police dispatcher in cruse terms over what he regarded as an improper roadblock, though constituting impolite and rude behavior, did not evidence 'a purpose to harass another' within the meaning of N.J.S.A. 2C:33-4." Here, if the determination were to be made solely on the record presented, that record would support a conclusion that defendant's conduct was much more than being "impolite and rude," particularly in the context of the type of behavior by him leading up to the November 28, 2007 incident, as described by the other witnesses.
However, the determination on the issue of "purpose to harass," particularly when such intent is inferred in a criminal context, as here, should be made in the context of all the evidence. Although the result upon retrial may very well be the same, we are constrained to reverse, vacate the finding of guilt, and remand to the Rutherford Municipal Court for a new trial.*fn2 In light of the credibility findings already made by the municipal court judge, we direct the matter be heard before a different judge. We find insufficient merit in the remaining arguments advanced by defendant to warrant discussion in this opinion. R. 2:11-3(e)(2).
Reversed and remanded.