January 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH LOGUIDICE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. A-106-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 16, 2009
Before Judges Axelrad and Sapp-Peterson.
Defendant Joseph Loguidice appeals from a judgment of conviction entered in the Law Division after an appeal and trial de novo, pursuant to R. 3:23-8(a), on the record from a proceeding in the Atlantic City municipal court. Defendant was found guilty of defiant trespass, N.J.S.A. 2C:18-3b. The Law Division judge modified the municipal court sentence to bar defendant from entering the Trump Marina, rather than all three Atlantic City Trump properties, for a two-year period. We affirm.
Defendant was charged with defiant trespass on March 30, 2008, when he refused to leave the Trump Marina Casino after security staff requested that, as a prior evictee, he leave the premises. The municipal court trial took place on July l7, October l6, and November 24, 2008. The State's position was that defendant had actual notice that he was not to return to the property when he was evicted and escorted out of the casino on August 4, 2007, following a dispute on the casino floor that resulted in the Director of Slot Operations, Patricia Richter, filing a criminal complaint against defendant for terroristic threats.*fn1 According to the State, defendant had additional, actual notice that he was not to return to the Trump Marina as a result of the agreement that was entered on the return date of that charge. The January l0, 2008 Atlantic City municipal court transcript of dismissal that was stipulated into evidence provided as follows:*fn2
[MUNICIPAL PROSECUTOR]: Judge, the Loguidice case, I think we have a resolution. Mr. Zarych [defense counsel] . . . (Off the record; back on the record with colloquy missing.)
MR. ZARYCH: . . . contact with Pat Richter (phonetic) in the case. The casino has made it clear, I'll put it on the record, that they do not wish to have Mr. Loguidice on the property. And also we would stipulate the probable cause for the filing of the complaint by the State Police. So that's it.
[JUDGE BRUCE WEEKES]: Is that right, [Prosecutor]?
[PROSECUTOR]: That's correct, Your Honor. I've also spoken to Ms. Richter and she's satisfied. She's not under any pressure to make the request of the State.
THE COURT: Okay. Mr. Loguidice, that matter is dismissed.
MR. ZARYCH: Thank you, Your Honor.
THE COURT: Are you Ms. Richter?
MS. RICHTER: Yes, sir.
THE COURT: Okay. You understand that this matter is being dismissed and you're not being forced to ask me to do that?
MS. RICHTER: No, sir.
THE COURT: Okay. All right. That matter is dismissed.
MR. ZARYCH: Judge, I think since the trial, since the trial already commenced I think that --
MR. ZARYCH: Could we have a verdict of not guilty?
THE COURT: It's dismissed.
MR. ZARYCH: Dismissed?
THE COURT: Yeah.
MR. ZARYCH: Thanks, Your Honor.
The State presented the testimony of Mark Sciore, a surveillance shift manager at Trump Marina, who testified he observed defendant in the casino on March 30, 2008, and preserved the surveillance coverage showing defendant near the kiosks in the atrium, which tape was stipulated into evidence. Defendant then stipulated that he was there on that date. The State also presented the testimony of Gregory Robertson, a security supervisor at Trump Marina, who stated that he advised defendant "he was a prior evictee and could not be on [the] property," and when defendant refused to leave, Robertson signed the defiant trespass charge against him.
Defendant testified that he did not believe that when the prior charge was dismissed against him in municipal court on January l0, 2008, there was an agreement that he was not to enter the Trump Marina, nor was he informed by Zarych that he could not return. It was his understanding that he and Richter "made a mutual understanding to stay away from each other" and, therefore, if either would encounter the other in the casino, he or she would "walk the other way." Defendant acknowledged the stipulation to the existence of probable cause for his arrest. According to defendant, he interpreted the clause "they do not wish to have [you] on the property" to mean that they "don't like me very much" and that the word "wish" was unclear to him, stating that, "I wish the stock market would go up so I could make some money. I mean what does that mean, wish?" Defendant acknowledged, however, that he entered the Trump Marina casino after January l0, 2008, and was told by security staff on two occasions before he was charged with this offense to leave and not return. Defendant explained, however, that he thought the casino's requests were "ridiculous" and "unfair," and that he returned on March 30, based on his research and reading of the case of State v. Morse,*fn3 believing he was entitled to be on the premises provided he was not causing trouble.
Defendant also produced Zarych, who testified that, in advance of putting the agreement on the record, he remembered discussing with defendant the probable cause stipulation but he did not recall whether or not he spoke with defendant about the casino's "wish" that he not return to the premises. Zarych testified he did not view the latter statement as having the "force of law" as a barment although he acknowledged that the casino representative expressed that "they didn't want him in the casino." Zarych did relate that after January l0, 2008, his office received a phone call from a Trump Marina representative that defendant was often seen in the casino, and it was Zarych's impression "they were getting irritated with him" and "it was sort of a plea to head off potential trouble," possibly out of concern with contact with Richter. Zarych testified he was never asked by the caller to tell defendant not to go back to the casino and he did not tell him that.
Judge Weekes found defendant guilty of defiant trespass, and imposed as a sentence that defendant stay away from the Trump Marina, Trump Plaza, and Trump Taj Mahal for two years and pay court costs. The municipal court judge found, despite Zarych's present recollection, that the transcript reflected the dismissal of the charge was expressly conditioned on defendant's stipulation, presented through counsel, that the State had probable cause for the filing of the complaint and, based on a commonsense reading of the "wish clause," that defendant not return to the Trump premises. The judge concluded that defendant returned to the Trump Marina on March 30, 2008, in violation of the statute, "after he knew he shouldn't have been there." Defendant appealed to the Law Division.
After a trial de novo, Judge Neustadter commented on his independent review of the trial transcript of the municipal court proceeding and credibility assessment of the witnesses, giving due, though not controlling, deference to Judge Weeke's credibility findings, with which he agreed. Based on a review of the July l0, 2008 transcript, the Law Division judge found there was an altercation on the Trump Marina premises in 2007, for which defendant "wasn't convicted of anything at that time but it was clear that the hotel didn't want [defendant there]." The judge explained that defendant "denied the -- charges and they settled it and the agreement was that [defendant] would not come back into the Trump Marina and they would drop the charges and they did drop the charges." The judge further found that defendant, who was present in court on that date, had actual notice that he was not to return to the casino and was bound by the agreement. Nevertheless, he returned there on March 30, 2008, and remained despite being informed by security that he was a prior evictee and not permitted on the premises, resulting in the defiant trespass charge. Judge Neustadter rejected defendant's argument that the stated agreement did not clearly provide he was barred from the casino or that the State "just gave up [Richter's] charge for no reason at all, or that they had a weak case." He concluded that "interpret[ing] [the record] in the full context and reasonably and logically," there was a quid pro quo of the State's dismissal of the criminal charge against defendant in exchange for which he would not return to the place where the charge had emanated, namely, the Trump Marina. The judge found defendant guilty of defiant trespass and imposed the modified barment sentence. This appeal ensued.
On appeal, defendant raises the following arguments for our consideration:
Point I: As a Matter of Civil Contract Law, the "Wish" Statement of Prior Counsel Was Not An Agreement "To Stay Out Of" the Trump Marina Casino.
Point II: The "Wish" Clause Was Insufficient as a Matter of Law to Give Notice Against Trespass under Our Law.
Point III: If the "Wish" Clause Were an Agreement, It was a "Plea Agreement" Under Our Supreme Court's Guidelines, and the Defendant had a Right to an Interpretation of His Prior Agreement BEFORE This Case Started as Counsel Had Requested.
Point IV: If the "Wish" Clause Were an Agreement, It Was a "Plea Agreement" Under Our Supreme Court's Guidelines, and the Defendant's Conviction Should Be Dismissed Because He Was Never Informed of the "Penal Consequences" of His Prior Plea Agreement. Point V: Ignorance, Mistake & Knowledge Defenses Give Mr. Loguidice a Valid Defense to This Complaint Even If His Understanding of the Facts or the Law Happened To Be Mistaken.
We have considered these arguments in light of the record and applicable legal standard and do not find them to be persuasive.
In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2009). The Law Division judge is bound to give "due, although not necessarily controlling, regard to the opportunity of [a municipal court judge] to judge the credibility of the witnesses." Johnson, supra, 42 N.J. at 157.
We do not "'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (l999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).
Defendant was convicted of defiant trespass, N.J.S.A. 2C:18-3b(1), which provides, in relevant part, as follows:
. . . A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(l) Actual communication to the actor; . . .
It is an affirmative defense to prosecution of the charge that:
(2) The structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure; or
(3) The actor reasonably believed that the owner of the structure, or other person empowered to license access thereto, would have licensed him to enter or remain . . . . [N.J.S.A. 2C:l8-3(d)(2),(3).]
Based on the testimony of both of the casino employees, and defendant's own admission, the State proved beyond a reasonable doubt that defendant entered and remained in the Trump Marino Casino on March 30, 2008, despite being requested to leave by the security officer. We are satisfied the record also supports the findings beyond a reasonable doubt that defendant had notice by actual communication prior to then that he was not permitted to return to the casino, i.e., "licensed or privileged" to enter or remain. On August 4, 2007, defendant had a confrontation with a casino employee that was sufficiently serious for him to be escorted from the casino and for her to file criminal charges against him. As the case was not tried to conclusion, we do not know the merits of either side's position. The record is clear, however, that defendant, represented by counsel, chose to settle the case rather than complete the trial, his attorney set forth the conditions of dismissal, and the criminal charge was dismissed against defendant. No plea agreement was entered as defendant did not plead guilty to the charge.*fn4
Although the "wish" clause was inarticulately worded, the record as a whole amply supports the Law Division judge's finding that "it was clear that the hotel didn't want [defendant there]" and his deference to the credibility assessment and finding by the municipal court judge who presided over both cases that defendant understood that he was not permitted to return to the casino. Moreover, defendant, himself, admitted that he received actual notice from casino security staff to leave the premises and not return on at least two occasions after the January municipal court hearing.
Defendant's reliance on the Morse case is misplaced and does not afford him a valid defense to the trespass charge. Morse is factually inapposite as there was no showing by the State that the defendant blackjack player had been excluded from the casino for cause. 276 N.J. Super. at l35. Here, the record demonstrates a reasonable basis presented by the casino for excluding defendant from its premises, i.e., an altercation and alleged threat to a member of its management on the floor of the casino in August 2007, which defendant did not challenge. We have held that the defense that the structure was open to the public is not available to a charge of "defiant trespass" when the owner of a casino exercises its common-law right to bar the defendant for disruptive behavior and, when the defendant returns, to demand that he leave. See State v. Slobin, 294 N.J. Super. 154 (App. Div. l996); see also Uston v. Resorts Int'l Hotel, Inc., 89 N.J. 163, 173 (1982) (setting forth the common law principles that enable a casino to exclude from its facility "the disorderly, the intoxicated, and the repetitive petty offender"). These principles are codified in the Casino Control Act, which establishes the casino's authority to exclude and eject persons not only who have been convicted of criminal offenses, but also recognizes such licensee's "common law right to exclude or eject permanently from its casino hotel any person who disrupts the operation of its premises, threatens the security of its premises or its occupants, or is disorderly or intoxicated." N.J.S.A. 5:12-71.1. Defendant did not comply with "all lawful conditions imposed on access to" the Trump Marina when he disregarded the express notice given to him at the January 8, 2008 municipal court proceeding and by security personnel before and after that date, that he was not permitted to return to the casino because of his disruptive behavior in August 2007. N.J.S.A. 2C:18-3(d)(2).
Nor did defendant establish the statutory defenses of ignorance or mistake to the defiant trespass charge. The statute provides that "[a] belief that conduct does not legally constitute an offense is a defense to a prosecution for that defense based upon such conduct when:"
The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude. [N.J.S.A. 2C:2-4(c)(3).]
The defendant carries the burden of proving the ignorance of mistake or law defense by clear and convincing evidence. Ibid.
Relying on one's own personal interpretation of judicial decisions does not constitute a defense of mistake of law. State v. Guice, 262 N.J. Super. 607, 616 (Law Div. l993). Instead, "some knowledge of the law, verified by an independent and typically competent source, is required." Id. at 617 (internal quotation marks and citations omitted).
Defendant's sole basis for this defense is that after the January 2008 municipal court hearing and then after being told twice by security staff not to return to the casino, he "did some research" and "got a couple of friends" who gave him the Morse case, which he read, to determine whether he had "a legal right to be in a casino." The record is devoid of any evidence that prior to his arrest for defiant trespass, defendant consulted with Zarych or another attorney or other competent, knowledgeable source respecting this issue. Yet, without any knowledge of law, and in flagrant disregard of the prior warnings, defendant decided that as a member of the public he had a right to re-enter the casino provided he did not cause any trouble. As defendant did not act diligently and did not make reasonable conclusions which a law-abiding and prudent person would also make, he cannot avail himself of this defense to the defiant trespass charge as a matter of law.
We are satisfied that the credible evidence in the record supports, beyond a reasonable doubt, all the elements of defiant trespass within the meaning of N.J.S.A. 2C:18-3b(1) and the finding of guilt. Therefore, we need not address the balance of defendant's arguments. R. 2:11-3(e)(2).