June 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JACQUES ARGILAGOS,*FN1 DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 10-4905.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 17, 2011
Before Judges Parrillo and Espinosa.
Defendant Jacques Argilagos was found guilty in the municipal court of the petty disorderly offense of disorderly conduct in violation of N.J.S.A. 2C:33-2a(1), and sentenced to pay fines, assessments and costs. He appealed to the Law Division, Rule 3:23-2, and after a trial de novo, was also found guilty of the same offense and received the same sentence. Defendant appeals, and we affirm.
Defendant's conviction arises from a dispute with a neighbor at a boarding house where they both resided at Washington Place in Passaic. According to the State's proofs, at around 7:00 p.m. on March 26, 2010, Passaic Police Officers Ortiz and Sellar responded to a call by defendant that a neighbor was harassing him and putting garbage in front of his apartment door. Officer Ortiz had been to the same location earlier that same day on two separate occasions to respond to similar complaints between defendant and his neighbors at the Washington Place boarding house.
Upon arrival, Officer Ortiz saw defendant screaming and flailing his arms at his neighbor's closed door. The neighbor, Mark Owens, eventually opened the door to speak with Officer Sellar. When defendant then attempted to fight Owens in the common hallway, Officer Ortiz directed defendant to calm down and relax. Despite Ortiz repeating this command more than eight times, defendant continued screaming at Owens antagonistically, challenging him to a fight, and waving his hands over Officer Ortiz to point at the neighbor.
On the two previous occasions Ortiz had responded to the boarding house, defendant was engaged in the same behavior, but when he was ordered to cease, defendant complied and went to his room. On this occasion, however, despite multiple warnings from Ortiz that if he continued acting wildly, he would be arrested, defendant refused to comply. Instead, he was shouting so loudly that Ortiz could not hear himself talking. As a result, defendant was arrested for disorderly conduct. According to Officer Ortiz, he did not observe any garbage in front of the door to defendant's room.
Defendant contradicted Ortiz's account. According to defendant, it was Owens who was screaming, banging on his door, and provoking a fight. At the close of evidence, the municipal court judge, crediting the State's version, found defendant guilty of disorderly conduct, N.J.S.A. 2C:33-2a(1), by engaging in "threatening" or "tumultuous" behavior with purpose to cause public inconvenience or annoyance. Specifically, the municipal court judge found:
However, the statute clearly prohibits having what's called tumultuous behavior. The testimony of Officer Ortiz is after he went . . . to the area at . . . Washington Place the third time on that particular day when he met a group of people, met the defendant in this case . . . and there was . . . an altercation.
The officer tried to calm everything do[wn], as he had done two times prior on that particular day, and to no avail. The other two times there was not a problem, regardless of who called the police.
The Court finds that behavior engaged in at that time by [defendant] violates [N.J.S.A. 2C:33-2a].
On a de novo review of the record, the Law Division judge also found defendant guilty of disorderly conduct and imposed the same sentence as the municipal court. The court reasoned:
This comes down to a clear case of credibility. In weighing credibility, the Court is permitted, in fact, indeed encouraged, to consider a number of factors. Let's look at the inherent believability or disbelievability of the testimony offered.
What's the theories? Did any witness have any interest in the outcome to such an extent that he or she might not tell the full truth? Well, here as we have a unique circumstance. This pro se litigant says he's had some prior difficulty with this named person in the past because that named person beat him up sometime in . Arguably, that would give this defendant some reason to want to get even, to call the police and say this gentleman is harassing me, putting garbage in front of my apartment door, et cetera. Brings this gentleman's credibility into question.
The big why in this matter is, why would the police come forward and lie in a petty DP case? Here the transcript also points out the fact that, in my view, the officers who arrived at the scene showed, at least initially, remarkable restraint. They were trying to quiet down the situation.
It appears to me from a fair reading of the transcript that they really didn't want to charge anybody with anything. There was no basis to charge the neighbor with anything because they didn't see any garbage loaded up in front of his door. But this litigant was insistent.
Again, the transcript points out the officers were trying to calm the situation. Calm this gentleman, in particular. But their efforts to do so were unsuccessful.
This gentleman was clearly upset but he failed to follow the requests of the officers, leading to the charge being brought against him for improper behavior, in violation of [N.J.S.A.] 2C:33-2a. . . .
And as noted, over and over again, it was Officer Ortiz who was attempting to calm this defendant down, as he had done two prior times that same day.
This was, in my view, tumultuous behavior. In terms of credibility for me, it's a no-brainer. This defendant is guilty.
On appeal, defendant contends the State failed to prove his guilt of N.J.S.A. 2C:33-2a(1) beyond a reasonable doubt in that Officers Ortiz and Sellar conspired with Mark Owens to falsely accuse defendant. We find no merit to this contention. R. 2:11-3(e)(2).
The function of the Law Division on an appeal from the municipal court is not to search the record for error by the municipal court, or to decide if there was sufficient credible evidence to support the municipal court conviction, but to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).
In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.
In discharging this function, we accord substantial deference to the findings of fact and credibility determinations of the court below.
[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.
[State v. Locurto, 157 N.J. 463, 474 (1999).]
When we are satisfied that the findings and conclusions of the Law Division are supported by sufficient credible evidence, our "task is complete and [we] should not disturb the result" even if we "might have reached a different conclusion" or if the result was "a close one." Johnson, supra, 42 N.J. at 162; see also Avena, supra, 281 N.J. Super. at 333. So measured, we are satisfied that the evidence in this case established that defendant acted in a threatening and frightening manner toward his neighbor and persisted despite repeated official commands to cease, thereby intentionally causing public annoyance and inconvenience, in violation of N.J.S.A. 2C:33-2a(1).