On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 25-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2009
Before Judges Carchman and Parrillo.
Defendant Evelyn Sabol appeals from her conviction in the municipal court and again on appeal in the Law Division, after a trial de novo, of simple assault, N.J.S.A. 2C:12-1a(1). We affirm.
The incident arose out of a May 2, 2008 altercation between defendant and Elaine Gass on the first floor of a senior citizen's building in Bayonne where both women reside. As a result of the incident, both women filed complaints against the other.
According to Gass, she went to the first floor exercise room because she heard a noise coming from that area. Upon arrival, she inquired of defendant about the noise and defendant told her to leave. When Gass turned to leave, defendant pushed and grabbed her arm. Gass screamed and then called the police who, upon arrival, escorted Gass to her apartment. Gass suffered a bruise to her arm as a result of the incident, which was depicted in a photograph admitted into evidence.
Defendant offered a different account. According to defendant, she had just entered the senior citizen's building with coffee, bagel, and newspaper in hand when she saw Gass. In an attempt to avoid a confrontation with Gass, defendant stood in an alcove near the exercise room. Gass approached defendant and asked her what she was doing near the exercise room. Defendant responded that she was exercising, but Gass replied that defendant could not be exercising because she had coffee in her hand. Gass then began pushing, shoving, and yelling at defendant to get out of the building. Defendant tried to walk away very fast, but Gass continued to push and shove her, "like I had a pit bull chasing me." After leaving the building, defendant went to the police station and filed a complaint against Gass.*fn1 She admitted that she did not suffer any injuries as a result of the incident. Defendant also testified that Teddy Humphries, a former employee of the senior citizen's building, witnessed the incident, but was not in court on the day of trial.
At the close of evidence, the municipal court judge credited Gass' version, dismissed the complaint against her, and found defendant guilty of the disorderly person's offense of simple assault. In comparing the credibility of the two parties, the judge concluded:
I have a photograph marked Gass-1, which Ms. Gass testified was a photograph of her right arm, indicating a bruise, and what clearly looks like a bruise to me. I admitted this into evidence over Ms. Sabol's objection. . . .
This is an actual bruise. Ms. Gass is a truthful witness. And I believe her when she tells me this is the bruise that she got in the altercation with you. And that that's what caused her to call the police.
And, Ms. Sabol, you have a problem with reality. You know, there are some things that are so inane that you remember perfectly that frankly, are wrong. And that there are other things that you would think in, in similar circumstances you might want to remember, like dates, times and places, that you have no idea when these events took place. But you do remember it was the second or third week in July or -- you know? And that on March 22nd at 9:00 it was still light out. It's ridiculous.
So I give no credibility whatsoever to Ms. Sabol's testimony.
Accordingly, upon finding defendant guilty, the judge sentenced her to a $500 fine, other assessments and ...