On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. S-2000-140-0236.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 21, 2010
Before Judges C.L. Miniman and Waugh.
Defendant Joel Reshevsky appeals from an order denying his application for post-conviction relief (PCR) based on ineffective assistance of counsel in connection with his conviction of harassment, contrary to N.J.S.A. 2C:33-4b, a petty disorderly persons offense for which defendant was fined an aggregate amount of $408. Because the judge erred in finding that defendant did not make out a prima facie case of ineffective assistance of counsel and in failing to conduct an evidentiary hearing, we reverse and remand. We order that an evidentiary hearing be conducted within thirty days of this opinion, unless defendant's expert is not then available, in which case the hearing shall be conducted on the first date the expert can attend and give testimony.
On August 16, 2000, defendant appeared in Montvale Municipal Court for a trial on a motor vehicle offense. The municipal judge found defendant guilty of going through a red light. Defendant then asked the judge if he could ask him a question on or off the record. The judge replied in a very loud voice, "No. Please leave. I have another matter to get to." Defendant inquired about the fine and the judge stated the fine again. Defendant then turned to Montvale Police Officer Denis Murphy, thanked him for testifying during the trial, and stated, "You lied." The prosecutor then protested twice that Murphy did not lie, and defendant left the courtroom.
According to Murphy, defendant approached him in an agitated manner in the lobby following the August 16, 2000, trial. The officer said that defendant's hand was raised with his index finger pointing at Murphy two to three inches from his face and defendant called him a liar in a loud voice. Murphy asked Sergeant Gregory Hanna to close the courtroom doors and he complied.
Murphy claimed that defendant then stood no more than a foot from him, accusing him of lying during the trial. Murphy said that defendant at that point poked him in the chest twice with his index finger, after which Murphy warned defendant that, if he poked him again, the officer would arrest him.*fn1 Defendant then poked him two or three more times, and Murphy placed him under arrest, grabbed his hand, and attempted to handcuff him. Defendant, however, was extremely agitated and tried to pull his arm away from Murphy. Montvale Police Officer Jeffrey Markheim observed these events and assisted Murphy in handcuffing defendant. After conferring with Murphy, the detective on duty charged defendant with harassment.
After defendant had been arrested, Murphy returned to the courtroom to testify in the next matter and conferred with the prosecutor while the matter was proceeding. Portions of that conversation were inaudible to the court reporter who transcribed the tape, but during audible portions the prosecutor and Murphy clearly discussed the conversation between defendant and the prosecutor after the judge's decision. The prosecutor whispered, "I am here as far as I--the guy left here (inaudible). He said, 'Thank you for understanding (phonetic), but he's a liar.' And I said, 'No, he's not.' And he said, 'Yes, he is.' And I said, 'No, he's not.' He says, '(inaudible).'"
After Murphy testified on the other matter, he resumed his conversation about defendant with the prosecutor. Murphy said, "That case (inaudible) got kicked out because I'm the witness as to what he was like--Reshevsky." Then the prosecutor said, "Subpoena me. Because he was like telling me in here you were a liar, and I said, no, (inaudible), get out." Murphy then said, "He should have just left." The prosecutor replied, "I know. He never--but the (inaudible)--he could never see that (inaudible)--the guy--." Murphy replied, "The guy is sitting in (inaudible) but the officer was in the intersection. He don't [sic] understand. That part's over. You got new problems." The prosecutor asked, "Did he poke (phonetic) you?" Murphy answered, "Yeah." The prosecutor replied, "That's what I figured. I could tell he's--."
After the prosecutor examined a witness, he resumed his conversation with Murphy. This conversation continued while the judge was placing his decision on the other matter on the record; the conversation clearly related to defendant. Murphy remarked, "I'll tell you the truth if someone calls me a liar (inaudible)--." The prosecutor remarked, "Yeah, I know. When you've been doing it a long time." Murphy replied, "He didn't-- he said--the Judge said, 'Shut up.'" Later, the prosecutor said, "He's going to deny it. He's going to deny touching (phonetic) (inaudible)." A short time later, Murphy said, "I don't know what his fucking problem is. He just doesn't get it." Then he said, "I heard (inaudible) say if anyone calls me a liar or something like that, you know, the guy--. . . that the guy doesn't stop (inaudible). When you turn around, he (inaudible)--that's consistent with (inaudible)--." The prosecutor replied, "He doesn't get this guy's (inaudible)--."
Further conversation was inaudible to the court reporter, although it continued to occur until the prosecutor said, "He was annoying. He was telling me, you know, you're a liar. You're a liar. He said it in here twice. He said it in here twice." Murphy's response was inaudible, but the prosecutor said, "Put me down as a witness to (inaudible)." Murphy said, "I'm saying the guy's a (inaudible). The judge told him to shut up (inaudible)." Although that was not the end of the conversation, the balance was inaudible.
The Montvale municipal judge transferred the trial of the harassment charge to the Alpine Municipal Court. The trial began on March 30, 2004, and continued on June 15 and October 13, 2004. Murphy was the first witness to testify. In addition to testifying to the facts described above, Murphy testified that he felt harassed, had not asked Reshevsky to touch him, and was disturbed that he did so. Murphy found Reshevsky's conduct alarming because he was highly agitated and had assaulted Murphy. Murphy was annoyed that this occurred in a public forum, and he found the physical contact annoying.
On cross-examination, Murphy denied that he removed defendant's hat, crushed it, and threw it to the ground.*fn2 He denied calling defendant a scum, a punk, an ass, and stating "they're scum." He denied that the prosecutor asked, "Did he poke you?" and denied that he replied, "No, but he was a pain." He denied remembering that he told the prosecutor, "When somebody calls me a liar, I get pissed off." He also denied recalling that he told the prosecutor, "It was stupid of me to react to . . . Rabbi Re[s]hevsky."
The State then called Markheim, who testified that he was in the lobby during the confrontation between Murphy and defendant. He had observed defendant in the courtroom initially and then defendant came into the lobby in an excited manner. Defendant went directly to Murphy, said he was innocent, and called Murphy a liar, getting face to face with him and pointing his finger at Murphy's face as Murphy repeatedly told him to lower his voice. Markheim did not see any physical contact between defendant and Murphy. Markheim assisted Murphy with handcuffing defendant and processing him at police headquarters. Defendant continued to protest that he was innocent and that Murphy was a liar. The State then rested and defendant moved for a judgment of acquittal, which was denied.
Defendant then testified that he saw Murphy at police headquarters between the date he was given the ticket and the August 16, 2000, trial. He sought information about the law applicable to the traffic violation, and a police officer was explaining it to him when Murphy came out to the desk yelling at defendant and telling him to go to a public library. Murphy then invaded defendant's personal space and forced him out of the police station. Defendant next saw Murphy at the trial.
Although other people were asked to speak with the prosecutor, defendant was not afforded that opportunity to resolve the matter. He admitted seeing Murphy in the lobby after the judge asked him to leave the courtroom and telling Murphy, in an admonishing fashion, that he was a liar. He was not yelling. He also admitted pointing his finger at Murphy, but claimed to be several feet away from him when he did so. He testified that he then turned to go pay the motor vehicle fine when Murphy started yelling, telling him not to ever point his finger at him again. Then, Murphy went after him, pushed him, started tugging him, pulling him and ripping his shirt. Defendant tried to pull away, and Murphy then drove him "up against the wall" where fines are paid to the clerk and said defendant was under arrest. Defendant denied ever making any physical contact with Murphy prior to his arrest. He testified that Murphy removed his hat violently and crushed it and that he did not intend to harass or annoy Murphy, but only to let him know that defendant thought he had lied about the traffic offense.
After defendant's testimony was finished, his attorney made a proffer with respect to an expert in audio enhancement who had performed an enhancement of the official tape recording of the August 16, 2000, trial. The expert would testify with respect to the statements made by the judge to defendant after he had been found guilty. He would then testify that when the prosecutor asked Murphy if defendant poked him, Murphy replied, "No, but he was a pain." Finally, the expert would testify that Murphy later said, "When somebody calls me a liar, I get pissed off," and, "It was stupid of me to react." After some colloquy with the judge, defense counsel offered to submit a brief on the admissibility of the transcript and the enhanced audiotape, and the trial was continued to June 15, 2004.
On the second day of trial, defendant called the Montvale prosecutor, but he was unable to recall whether Murphy told him that defendant did not poke him, but defendant "was a pain." He had no recollection of Murphy saying it was stupid of him to react or of Murphy saying that when someone calls him a liar he gets "pissed off." He denied saying he had to get back in there, "this fucking with the rebel, we can't have a photo op of Markheim smashing his head in" and had no recollection of anyone saying that to him. On cross-examination, he had no recollection of any conversation with Murphy, but he did remember the judge yelling at defendant, defendant calling Murphy a liar, and that something happened in the lobby.
Defense counsel then recalled defendant, who testified he left the courtroom at 7:10 p.m. and was arrested ten minutes later. There were only two people in the courtroom in addition to the prosecutor and judge. He testified he took one or two steps out of the courtroom, called Murphy a liar, and pointed at him with his left hand from seven to ten feet away. He never touched Murphy. He then walked toward the window to pay his fines. Murphy pursued him in a "pusillanimous fashion," screaming and yelling. He also testified that he listened to the tape recording of the proceedings on August 16, 2000, and could hear Murphy's voice and the prosecutor's voice.
Defense counsel returned to the subject of the enhanced tape recording. Although he submitted a brief to the judge, the judge commented that it was not what he was expecting because he wanted a brief on the admissibility of an enhanced audiotape. The judge ultimately agreed to listen to the enhanced audiotape and to permit the expert to testify. The matter was continued to October 13, 2004.
At that time, defendant called Hanna to the stand. He was the assigned municipal court officer on August 16, 2000. He was in the courtroom standing by the door when defendant was found guilty and then left the courtroom. He heard the judge tell defendant to leave the courtroom. As defendant approached Hanna, he said, "You were nice to me," and then told Murphy that he was a liar. Murphy told defendant not to call him a liar. The exchange continued as defendant and Murphy walked away from the door to the courtroom. He saw defendant pointing at Murphy's face. Defendant's finger never came in contact with any part of Murphy's anatomy. All he heard and saw defendant say and do was tell Murphy he was a liar and point his finger within one inch of Murphy's face. He did not recall Murphy telling defendant not to point his finger at him. As Hanna closed the courtroom door, he saw Murphy and defendant in a scuffle and heard Murphy say that defendant was under arrest; this was at 7:20 p.m. Had he heard Murphy tell defendant to get his hands off him, Hanna would have interceded.
After Hanna's testimony was completed, defense counsel sought to recall Murphy and Markheim, but the judge would not allow them to testify. Counsel then addressed the issue of the defense expert, who had been in court on March 30, 2004, but was not reached. Instead, briefs were sought and provided. However, the expert was not available on October 13, 2004. The judge pointed out that counsel had not provided him with any legal authority respecting the admissibility of an enhanced audiotape and, even if the expert were ...