January 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID B. MOSELEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-01-0146.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010
Before Judges Cuff and Sapp-Peterson.
Defendant appeals from his conviction, following a bench trial, of fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a), and the three-year probationary sentence imposed. We affirm.
A bench trial was conducted before Judge John T. Kelley. The State presented three witnesses: Caroline Moseley, defendant's sister-in-law; Kevin Moseley, defendant's brother; and Joseph Ryan McGinty (McGinty), plumber and family friend who worked for Caroline's brother's company.*fn1 No witnesses were presented on behalf of defendant.
Caroline testified that she was married to defendant's brother and that until August 27, 2007, the date of the incident, she and her husband enjoyed a "pretty close" relationship with defendant. She arrived home on the day of the incident around 5:00 p.m. after she had taken two of her children to the dentist. She found defendant on her porch "pacing back and forth." Defendant told her that he had broken into her home with a wooden shim. Caroline told the court that she did not know why defendant had come to her home. She and defendant had a telephone conversation earlier that day during which she told him that she was taking the children to the doctor's office and, therefore, defendant knew that she was not going to be home. Although she never actually saw defendant inside of her home, when she ultimately entered, she observed an open beer can and cookies that had also been opened on the counter. She filed a complaint against defendant for trespass the following day.
Kevin testified that his brother, prior to the August 27 incident, visited his home "anywhere from one to seven times per week." He indicated that he never allowed anyone in his home without an invitation, "even my brother," and had not invited defendant to his home on August 27. Nor did defendant have a key. Kevin explained that he worked that day in the Vineland area and had left his cell phone at home. He worked from 7:00 a.m. until 5:00 p.m. Under cross-examination, he acknowledged that he and defendant engaged in a heated conversation later in the day following the incident and that during this exchange, defendant expressed being in love with Caroline and wanting him "out of the picture."
McGinty testified that he knew Caroline and Kevin through working at Caroline's brother's company, where Kevin had also briefly worked. He knew defendant through Kevin. On August 27, he received a telephone call around 4:00 p.m. from Kevin's cell phone number. He indicated that initially he was unaware that he was speaking with defendant because Kevin and defendant's voices were similar, but as the conversation continued, he realized that he was speaking with defendant. Defendant told him that he had broken into Kevin's home, found the phone, was looking for his brother, was angry with Kevin, and was "out to get Kevin for something." McGinty estimated the call lasted five minutes. Under cross-examination, he described defendant's demeanor as exhibiting a lot of "aggression and may have seen [sic] like he was under the influence of something . . . he was going on and on, over and over the same stuff over and over again looking for Kevin." When the call was over, out of concern for Caroline and the children, McGinty testified that he attempted to reach out to Caroline's brother because he did not have Kevin or Caroline's cell phone numbers. He was able to contact Caroline's sister-in-law.
In rendering his findings, Judge Kelley characterized the incident as being fueled by a familial dispute between defendant and his brother. He found the witnesses presented were credible. In particular, he noted that McGinty was a neutral witness "with no axe to grind in this matter." He found that McGinty's testimony was "extremely credible and believable." The judge concluded the State proved beyond a reasonable doubt that defendant had knowingly entered the residential dwelling of Caroline and Kevin Moseley on August 27, 2007, without a license or their permission to do so. He based his findings substantially upon the testimony of McGinty, who testified that defendant told him he had broken into the home.
At sentencing, the prosecutor requested that the court impose a three-year probationary sentence. Defense counsel also sought the imposition of "limited probation," without specifying any particular period. Judge Kelley, after considering aggravating and mitigating factors, sentenced defendant to serve a three-year probationary term, conditioned upon his participation in an anger management program and undergoing a substance abuse evaluation. Appropriate fines and penalties were also imposed. The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT'S VERDICT OF GUILT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE TRIAL COURT'S DECISION TO IMPOSE A TERM OF PROBATION FOR THREE YEARS WITH CONDITIONS [WAS] EXCESSIVE.
At the outset, we observe that defendant's first point misstates the standard of review by arguing that the "verdict was against the weight of the evidence." That standard applies to jury verdicts, not judgments entered as a result of a non-jury trial. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). Our scope of review of a judge's findings in a non-jury trial is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). Our standard of review is that we determine whether the record contains sufficient, credible evidence to support the judgment. In re J.R., 165 N.J. Super. 346, 351 (App. Div. 1979). In that regard, we give special deference to trial judge's factual findings that are substantially influenced by the judge's opportunity to observe the witnesses directly. State v. Johnson, 42 N.J. 146, 161 (1964). We are satisfied that the findings of Judge Kelley are based upon sufficient, credible evidence contained in the record and could reasonably have been reached based upon that evidence. Locurto, supra, 157 N.J. at 472-73; Johnson, supra, 42 N.J. at 161-62.
Not only was defendant observed on the porch of Kevin and Caroline's home by Caroline, he told her that he had broken into the home using a wooden shim. Caroline found an open container of beer and an open box of cookies on the counter. Additionally, Kevin testified that he left his cell phone home on August 27. McGinty testified that he spoke with defendant on August 27, and that the call came from a cell phone bearing Kevin's number. During the telephone conversation, defendant told McGinty that he had broken into Kevin and Caroline's house. Both Kevin and Caroline also denied inviting defendant to their home that day or giving him permission to enter the home in their absence. The court credited this testimony. The court's conclusion that the State proved beyond a reasonable doubt defendant committed fourth-degree trespassing was "supported by sufficient credible evidence in the record[.]" State v. Chun, 194 N.J. 54, 88-89, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).
As for defendant's claim that the three-year probationary sentence was excessive, we are satisfied that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
Defendant has a lengthy record of petty and disorderly persons convictions. He therefore faced what could potentially have been an eighteen-month custodial sentence in connection with his conviction. Judge Kelley, after reviewing the relevant factors, determined that defendant should receive a three-year probationary sentence. Nothing in the record tends to show that there was a clear error of judgment in sentencing defendant that shocks the judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984).