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Zuckerman v. Borough of Highland Park

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 29, 2010

RICHARD PAUL ZUCKERMAN, PLAINTIFF-APPELLANT,
v.
BOROUGH OF HIGHLAND PARK, OFFICER ROBERT MILLS, DETECTIVE JOSEPH VASSALLO, SERGEANT FRANCIS KINNEY, AND JANE STANLEY, THE DIRECTOR OF THE HIGHLAND PARK LIBRARY, DEFENDANTS-RESPONDENTS, AND ASSISTANT MIDDLESEX COUNTY PROSECUTOR WADE BAKER, AND THE STATE OF NEW JERSEY, DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3743-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 12, 2010

Before Judges Fuentes and Gilroy.

Plaintiff Richard Paul Zuckerman appeals from the August 29, 2008 order that denied his Rule 4:50-1 motion seeking to vacate two April 19, 2005 orders granting summary judgment to defendants Borough of Highland Park; Officer Robert Mills, Detective Joseph Vassallo, and Sergeant Francis Kinney of the Highland Park Police Department; and Jane Stanley, the Director of the Highland Park Library (collectively, the municipal defendants). We affirm.

This is the second appeal in this matter. The procedural history and statement of facts are contained in our prior unreported opinion affirming the trial court's grant of summary judgment. Zuckerman v. Bor. of Highland Park, A-4461-04 (App. Div. July 5, 2007), certif. denied, 192 N.J. 600 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1887, 170 L.Ed. 2d 759 (2008). However, the following summary will place this appeal in context.

On November 23, 1998, after an incident inside the Highland Park Public Library, members of the Highland Park Police Department arrested and charged plaintiff with disorderly conduct, N.J.S.A. 2C:33-2(a); obstruction of justice, N.J.S.A. 2C:29-1(a); and possession of a weapon (a knife), later downgraded by the County Prosecutor to a disorderly persons offense, N.J.S.A. 2C:33-2b. Following trial in the municipal court and a de novo appeal to the Law Division, plaintiff was found guilty of disorderly conduct. On appeal, we affirmed. State v. Zuckerman, A-0082-02 (App. Div. March 14, 2003). The Supreme Court denied certification, State v. Zuckerman, 177 N.J. 492 (2003), and the United States Supreme Court denied certiorari. Zuckerman v. New Jersey, 540 U.S. 953, 124 S.Ct. 396, 157 L.Ed. 2d 287 (2003).

Plaintiff filed a civil right's complaint against not only the municipal defendants, but also Assistant Middlesex County Prosecutor Wade Baker, and the State of New Jersey. On April 19, 2005, the trial court entered two orders supported by a written decision granting the municipal defendants' motions for summary judgment.

Plaintiff appealed. One of the arguments presented by plaintiff was that the trial court erred in determining that his disorderly conduct conviction was admissible in the civil action, and collaterally estopped plaintiff from re-litigating the underlying facts in the civil action. By an unreported decision, we affirmed. Zuckerman v. Bor. of Highland Park, supra, (slip op. at 2). As to the aforementioned issue, we acknowledged that N.J.R.E. 803(c)(22) only permits admission of evidence of a final judgment against a party, adjudging him or her guilty of an indictable offense. Id. at 8. However, we determined the trial court's ruling harmless because "the underlying facts that were contained in plaintiff's own pleading established that he defied the Library rule of which he had notice and that he challenged the Librarian's authority to enforce the rule that placed time limits upon the use of the telephone by its patrons." Id. at 9.

On July 25, 2008, plaintiff filed a motion in the Law Division seeking relief from the two April 19, 2005 orders pursuant to Rule 4:50-1(e) and (f). On August 29, 2008, Judge Stroumtsos denied plaintiff's motion without argument, noting on the order: "Case dismissed - Appellate Court affirmed."

On appeal, plaintiff argues:

POINT I.

A MUNICIPAL COURT CONVICTION IS INADMISSIBLE AND DOES NOT ESTOP A CIVIL ACTION IN THE SUPERIOR COURT OF NEW JERSEY ON ALLEGATIONS OF STATE CONSTITUTIONAL TORT DISCRIMINATORY ARREST AND PROSECUTION.

POINT II.

A HECK*fn1 -EXCEPTION SHOULD BE GRANTED TO A HABEAS-INELIGIBLE PLAINTIFF PURSUING AN ACTION UNDER THE NEW JERSEY CONSTITUTION.

POINT III.

THE TRIAL COURT VIOLATED R. 1:7-4[(a)] FROM HAVING FAILED TO AMPLIFY ITS FINAL DECISION OF SIX SCRIBBLED HAND-PRINTED WORDS ON THE ORDER.

We have considered plaintiff's arguments in light of the record and applicable law. The arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comment.

Plaintiff's primary argument is that the trial court erred in admitting evidence of plaintiff's disorderly conduct conviction and using that conviction as a basis for denying plaintiff the right to re-litigate the underlying facts concerning the disorderly conduct leading to his arrest. Because this issue was addressed on direct appeal from the grant of summary judgment, plaintiff is barred from collaterally seeking to re-litigate the issue, via a Rule 4:50-1 motion. Although the trial judge could have more fully elaborated in his statement of reasons for denying plaintiff's motion seeking relief from the two April 19, 2005 summary judgment orders, we find no error in his ultimate decision.

Affirmed.


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