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State v. Hertz


November 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 01-103.

Per curiam.


Argued September 14, 2009

Before Judges Rodríguez, Reisner and Yannotti.

Defendant Barbara Hertz was convicted in the Municipal Court of Boonton Township and again after a trial de novo in the Law Division of the disorderly persons offense of obstruction of justice, N.J.S.A. 2C:29-1a, and the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-2a(2). She appealed the conviction. We reversed and remanded, State v. Hertz, No. A-081-99 (App. Div. Jan. 25, 2001), finding that the Law Division judge applied the incorrect standard of review and defendant was wrongfully denied a full opportunity to present evidence of "witness' interest, bias and credibility."

On remand, the Law Division judge afforded defendant wide latitude in supplementing the record. Indeed, defendant essentially received a new hearing on both factual and credibility issues. After considering the extensive remand testimony, the judge found defendant guilty of both obstruction of justice and disorderly conduct. We now affirm in part and reverse in part.

The evidence at the trial in the municipal court was detailed in our original opinion. This is an overview. The facts were sharply disputed. The State's version was that on May 18, 1998, at 12:43 p.m., Sergeant Andrascik of the Lincoln Park Police Department responded to a house alarm at Orchard Drive in Lincoln Park. Officers McGregor and Herbeck were already there. McGregor and Herbeck parked their patrol car "not quite on the side of the road." Andrascik pulled up his vehicle alongside the other one. Although the two patrol cars were parked next to each other, the road was still wide enough to allow other cars to pass.

Andrascik walked towards the house. When he was approximately twelve feet from the driveway of the house, he noticed Hertz walking up Orchard Drive. She was about twenty to twenty-five yards from him. Andrascik recognized Hertz based on a previous encounter. As she rushed towards the officers, Hertz was holding a bag in one hand and reaching inside it with her other hand. Andrascik and McGregor told Hertz not to approach. Hertz ignored their warnings and continued to advance towards the police officers. Andrascik repeated his warning to stop. Hertz responded, "[a]nd if I don't, are you going to arrest me?" Andrascik replied that he would arrest her if necessary.

Hertz retrieved a camera from her bag. She raised it into the air as she charged towards the officers. The camera was not held in a position to take photographs. The camera came within a few inches of the bridge of Andrascik's nose. He managed to avoid contact by grabbing Hertz's arm. Andrascik arrested Hertz and confiscated the camera.

Hertz disagrees with the State's proofs. She is the owner of real property on Orchard Drive, an empty lot used for agricultural purposes. Orchard Drive is the only road that can be used to access her property. There is a history of prior dealings and confrontations with the Lincoln Park police force. Hertz has also been engaged in various types of litigation with her neighbors regarding property issues. One of these lawsuits was against her neighbor Michael Nowacki, the former police chief of Lincoln Park. Hertz alleges that she has often been harassed by the Lincoln Park police.

According to Hertz, on the morning of May 18, 1998, she was working on her property. After completing her work, she was walking up Orchard Drive to her car. She noticed the two patrol vehicles parked alongside of each other. The patrol vehicles were completely obstructing the road so that no other car or pedestrian could pass. As soon as Hertz noticed the vehicles, she retrieved her camera and began taking photographs.

Hertz saw Andrascik drive off in his car and later return on foot. While Andrascik was not present, McGregor got out of his car and approached Hertz holding his hands up in front of his face. Hertz testified that she was attempting to photograph the vehicle's license plate and not the officers.

McGregor approached her and said, "[y]ou never learn do you Mrs. Hertz." He then asked her why she was taking photographs. Hertz testified that the officers did not inform her to stop or that they were investigating an alarm.

At trial, Hertz was represented by counsel. Andrascik was the sole witness for the State. Hertz had subpoenaed the following witnesses to testify at the municipal court trial: Michael Nowacki; Tony Postiglione, the owner of the house whose burglar alarm sounded; Jennifer Willis, Postiglione's girlfriend; Lincoln Park Police Chief Kenneth West; and Clara Perry, another one of Hertz's neighbors. Only Nowacki appeared.

Nowacki admitted that he had filed complaints against Hertz in the past. On May 18, 1998, however, Nowacki and his wife were not in town. Nowacki testified that he never suggested to Andrascik to lodge any complaints against Hertz nor was he aware that any complaints had ever been filed.

The judge found Sergeant Andrascik to be credible. He found Hertz guilty of obstruction of justice and disorderly conduct and not guilty of harassment.

This is a summary of the evidence presented at the remand hearing. Anthony Postiglione appeared as a defense witness and testified that, although his burglar alarm had gone off several times in the past, he could not recall any details about the May 18, 1998 incident. On direct examination, Hertz asked several questions relating to a street map of the area around Orchard Drive and photographs taken from her camera. She attempted to make the point that the orientation of the streets and objects in the photograph revealed that they were not taken by Hertz, but must have been taken subsequently.

Officer James Herbeck testified as a defense witness. His recollection of the events of May 18, 1998 was substantially similar to Andrascik's prior testimony. Herbeck arrived at the scene of the burglar alarm with McGregor. The two officers did not enter onto the property because of the presence of a dog. Shortly after Andrascik responded to Orchard Drive, Herbeck recalled that he observed defendant walking up the road toward the officers. Defendant ignored McGregor's instruction to keep away from the officers. Herbeck agreed that the reason for defendant's arrest was that she was "distracting" the officers from their investigation. After defendant's arrest, McGregor stayed behind at the scene while defendant was transported to the police station. Herbeck testified that he remained in McGregor's patrol car at all times until after Hertz was arrested.

Hertz questioned Herbeck at length regarding the contents of various photographs supposedly taken by Hertz just prior to her arrest. Herbeck denied taking any of the pictures himself or otherwise handling Hertz's camera. He disagreed that Hertz's camera and film were "destroyed" and that he participated in "staging" the photographs from Hertz's camera provided to Hertz in discovery. Herbeck denied Hertz's suggestion that Hertz's arrest was "part of [Herbeck's] initiation in the Lincoln Park police force." At the time of the arrest, Herbeck was in training.

Andrascik also testified at the remand hearing. As to the events of May 18, 1998, Andrascik's testimony was substantially consistent with his testimony at the first hearing. Andrascik generally denied that the Lincoln Park Police had any kind of vendetta against Hertz. He testified that he was aware that McGregor had filed several parking summonses against defendant, but denied that McGregor asked Andrascik to arrest Hertz, so as to prevent her from filing court papers in the unrelated action. According to Andrascik, he had been called to Orchard Drive on a prior occasion, to investigate a trespassing complaint against defendant. He had investigated defendant for an unrelated traffic offense in 2000, subsequent to her present arrest. Andrascik denied any awareness of another prior complaint filed against defendant for "obstructing traffic." On cross-examination, Andrascik unequivocally denied that he was involved in a "conspiracy" against defendant or that the Lincoln Park police was part of a conspiracy.

In the course of cross-examining Andrascik, defendant attempted to introduce a series of photographs reenacting the circumstances and events of her arrest, utilizing a mannequin. The photographs contained superimposed "inserts." Defendant sought, in part, to use the photographs to demonstrate her distance from the officers at the time of their interaction. Andrascik testified that, in certain respects, the reenactment photographs differed from the appearance of the area on the date of the incident. The judge sustained the State's objection to these photographs.

Officer Mark Nowacki, Michael Nowacki's son, also testified at the remand hearing. At the time of the hearing, Mark was a captain in the Lincoln Park police and kept records for the Department. Hertz attempted to establish the Police Department's procedure for recording times on an "event listing." The State stipulated that this document was "complete." However, because such listings are not "simultaneous logs," the judge determined that Mark's testimony was not relevant to the claim that the officers misrepresented the timing of her May 18, 1998 arrest.

Hertz questioned Mark as to the Police Department's and his family's bias against her. Mark stated that he lived with his parents on Orchard Drive from 1987 to 1990. At the time of the trial, Mark's parents continued to live four doors down from the Orchard Drive property owned by Hertz. Mark was unaware of any attempts by his father to obtain adjacent land owned by Hertz. He had no knowledge of any December 1997 incident in which Mark's brother, Michael Nowacki, deceased at the time of the hearing, had "stalked" Hertz or of a simultaneous complaint filed by a neighbor. Mark did not believe his brother was involved in the May 1998 investigation of defendant. However, Mark did concede that his father issued Hertz a summons for careless driving in 2001. He also testified that another police officer, the son of a local councilman, issued Hertz a summons in 2001. Finally, Mark recalled an incident in "'88 or '89" during which he spotted Hertz on his parents' property and asked her to leave.

Hertz testified that on May 18, 1998, she was on her Orchard Drive property "making deliveries" and feeding the bees, which she keeps on the property. At approximately "high noon" or 1:00 p.m., Andrascik approached her. She stayed still, taking pictures while Andrascik approached her from twenty to twenty-five feet away. Hertz alleges that she took seven photographs. Only four were provided to her by the State. She testified that the officers had presented contradictory testimony on the issue of whether she was "standing still" while photographing the officers. She reasserted that she believed the officers were not involved in any active investigation of a burglary at the time of her arrest or that the investigation was completed by the time of her arrest. According to Hertz, prior to the May 1998 incident, members of the Lincoln Park police had threatened to arrest her for conducting legal activity. She claimed to be the victim of general harassment by officers of the Police Department. In fact, she had been issued a traffic citation in February 1998, just months before the present incident.

Hertz surmised that McGregor summoned Andrascik to the scene of her arrest because McGregor was biased against her, but did not want to arrest her himself, for fear of the appearance of impropriety. Hertz also described her post-arrest poor treatment by the police. According to her, McGregor appeared at the station only five minutes after Hertz was transported there, negating Herbeck's claim that McGregor remained on Orchard Drive to further investigate the house alarm.

Hertz attempted to introduce additional reenactment photographs into evidence, holding herself out as an expert in "forensic interpretations." Hertz presented evidence of her education in science in the form of her National Teacher Examination test score and argued that she was "qualified to be a forensic expert [on her] own behalf." Based upon her study of "sundial time," Hertz testified that the photographs purportedly taken from the scene by her camera were "not my photographs" and she was "already in a jail cell when these pictures were taken." She explained that she later returned to the scene and took experimental photographs at the same time of year as the May 1998 incident, positioning the mannequin to mimic the pictures she received in discovery. She measured the shadow that the sun would have cast at the time of her arrest. Hertz estimated that, based upon the shadows in the pictures provided by the prosecutor, those photographs were taken "at least after 1:40 . . . at least one hour later." In examining "the shadow line across McGregor's body" and "the shadow generated by the vehicle" in the pictures supplied by the prosecutor, Hertz estimated that these photographs were taken after she was arrested and placed in a holding cell.

The judge ruled that Hertz could not have accurately reconstructed the original photographs. He found that the photographs were not probative of any fact surrounding the May 1998 incident. The judge found that Hertz was not qualified to testify as an expert and sustained the prosecutor's objection to these photographs.

The judge issued a letter opinion rejecting Hertz's arguments that the testimony of the officers was contradictory and that Officer Andrascik's testimony was impeached by documentary evidence. Although the judge recognized the "difficult relationship" that existed between Hertz and the local police, he did not find "any credible evidence . . . showing a 'vendetta' or bias . . . which was the motivation for the charges that were brought in this matter, or that would render the testimony of the Officers incredible in the eyes of the Court." The judge found that the evidence supported the charges of obstruction of justice, N.J.S.A. 2C:29-1a, and disorderly conduct, N.J.S.A. 2C:33-2a(2). On the obstruction charge, Hertz was sentenced to probation with a special condition requiring a psychological evaluation. On the disorderly charge, Hertz was ordered to pay various fines and costs.

Subsequently, Hertz moved for reconsideration. The judge denied the motion and stayed the sentence pending appeal.

On appeal, defendant contends:



A. There Could Be No "Harassment."

B. Contradictory Instructions Defeats The Allegation Of "Failure To Comply."

C. Standing Still and Taking Pictures Is Not Interference.

D. The "Event Listings" Were Knowingly Suppressed.

E. There Was No Time For An Alarm Investigation After The Arrest.




A. The Proffer Was Entered.

B. The Probative Documents Were Improperly Excluded.

1. The [Reenactment] Photographs Show Sun/Shadow Conditions At The Time of Arrest and the Time of Police Photographs.

2. [Reenactment] Documents Are Probative of Incongruent Time Details.

3. Mannequin Photos: D-7, Da55; 36D-17, Da57; D-22, Da60; D-37, Da59, Show The Time.

C. The Exclusion Should Be Subject To Challenge On Appeal.


A. Excluding Probative Evidence Was An Improper Exercise of "Discretion."

B. The Trial Judge Improperly Directed The Prosecutor To Object To Probative Evidence.


A. Evidence Tampering

B. Suppression and Destruction Of Evidence.

C. Police's Misrepresentation And Manufacturing Of Evidence.

We reject these contentions, which are essentially a challenge to the factfinding by the judge. When error in factfinding by a judge is alleged, the scope of appellate review is limited. We will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. State v. Johnson, 42 N.J. 146, 162 (1964). We give "due regard" to the ability of the factfinder to judge credibility. Id. at 161; State v. Locurto, 157 N.J. 463, 470-71 (1999). It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Locurto, supra, 157 N.J. at 471.

Here, based on our careful review of the hearing in the municipal court and the proofs presented in the Law Division, we are satisfied that the judgment of conviction on the charge of obstruction of justice, N.J.S.A. 2C:29-1a, is supported by credible evidence. Johnson, supra, 42 N.J. at 161-62.

Defendant also contends:


A. The Law Court Was Informed That The Disorderly Complaint Had Been Dismissed.

B. The Court Below Assessed Fines Against The Dismissed Complaint.

C. The Defendant's Action Does Not Warrant "Special Probation."

We agree.

The State had dismissed this charge at the start of the remand hearing. This fact was made known to defendant. Therefore, defendant was not on notice that she would be tried for that offense. It is clear that "[a] conviction of an offense for which a defendant is not charged and which is not a lesser included offense of that designated in the complaint cannot stand." State v. Koch, 161 N.J. Super. 63, 67 (App. Div. 1978); see also Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978) ("The first prerequisite . . . of due process is fair notice so that a response can be prepared and the respondent fairly heard.").

The conviction on the disorderly conduct charge is vacated. The conviction and sentence on the obstruction of justice conviction are affirmed.


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