June 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JACQUES E. ARGILAGOS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 10-4871.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 17, 2011
Before Judges Parrillo and Espinosa.
Defendant Jacques E. Argilagos was found guilty in the municipal court of the petty disorderly offense of disorderly conduct, N.J.S.A. 2C:33-2a. On appeal to the Law Division, Rule 3:23-2, he was again found guilty of the same offense after a trial de novo. Defendant appeals, and we affirm.
According to the State's proofs, defendant is a tenant of a rooming or boarding house located in Passaic. On July 9, 2009, Ismael Moody, a resident and superintendent of the building, responded to banging and screaming on the third floor, where he observed defendant cursing while banging and kicking the door of a room occupied by another tenant, Mark Owens, who lived by himself. Owens, who had returned from work, was inside the apartment and could hear defendant yelling. At some point, the police arrived and Moody let them into the building. When Officer Michael Kisfalvi approached Owens and asked him if he was "okay," defendant charged at Owens, coming within two feet of him. Defendant was cursing and yelling at Owens and waving his hands in Owens's face. Officer Kisfalvi, believing defendant was going to strike Owens, ordered defendant to step back twice. When defendant ignored the command, Kisfalvi arrested defendant for disorderly conduct based on the officer's own observations.
Defendant gave a different account. According to defendant, he was sitting in his room watching television and reading a newspaper when he heard a loud noise at his door. He called police and when Officer Kisfalvi arrived, defendant identified Owens as the person banging on his door and also accused Owens of threatening him and spitting on his door. At the time, defendant was standing twenty feet away from Owens. Defendant claimed Owens had also threatened him with a knife and tried to "pick" a fight with him.
Crediting Officer Kisfalvi's testimony, the municipal court judge found defendant guilty of the petty disorderly offense of disorderly conduct by engaging in threatening behavior with purpose to cause public inconvenience or annoyance, in violation of N.J.S.A. 2C:33-2a(1). The judge reasoned:
I don't believe your [defendant's] version, I don't believe your story. The only person that testified in my courtroom that apparently has no issue with you, because you seem to have issue with everybody in that building. Either you have an issue with Mr. Moody, so both of your testimonies maybe balance or counterbalance each other.
The one person that's got no interest . . . in the outcome of this case is the officer. He doesn't live in the building, he doesn't have charges pending or you didn't have charges pending against him, he didn't ask you to move out of the building.
He responded to a police call for the disturbance between tenants. And the officer said when he walked in the building he saw you screaming and yelling and carrying on, [waving] your arms, go[ing] after Mr. Owens. And had it not been for the officer to intervene, you would have assaulted him.. . . .
His testimony is that Mr. Owens was very calm, was not yelling. The only person that was yelling and screaming was you. The one that was about to commit an assault was you, not Mr. Owens. Mr. Moody apparently wasn't involved. He directed the officer upstairs or let him in.. . . .
He did say he saw you screaming, yelling, going after the other person. You had your arms in his face or your hands or fingers were pointing at him. I find you guilty of this charge of disorderly conduct. The State has proven this case against you beyond a reasonable doubt.
I find that you engaged in fighting behavior on that day, under Subsection 1 of 33-[2A], improper behavior. I do find that you did engage in conduct that created an inconvenience for the public. The police had to arrive there. There were other people in the building that had to hear and deal with your carrying on and your behavior.
On a de novo review of the record, the Law Division judge also found defendant guilty of disorderly conduct, N.J.S.A. 2C:33-2a(1). Specifically, the court found:
The officer's testimony is that he was about two feet away and observed you throwing your hands up, acting in an agitated manner and virtually threatening Mr. Owens.
That's his observation. You can [contest] the distance, but the police officer, who has no axe to grind in the case, made his own observation. He's the one person in the case who really doesn't have any side to take in it. The municipal court judge did find him credible and it's up to the municipal court judge who has a chance to observe the witnesses to make findings of credibility. And this Court has to give deference to the municipal court judge's findings on issues of credibility of witnesses who appeared before, because this Court does not have an opportunity to review and observe those witnesses.
I would also note too, that police officers are particularly trained in distances. On appeal, defendant contends that the State failed to prove his guilt beyond a reasonable doubt. We reject this contention as without merit. 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.
[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 caused public inconvenience and annoyance by his threatening conduct and that such behavior constitutes the petty disorderly offense of disorderly conduct in violation of N.J.S.A. 2C:33-2a(1). State v. Stampone, 341 N.J. Super. 247, 254-55 (App. Div. 2001).
© 1992-2011 VersusLaw Inc.