July 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAUL WADE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 2009-6935.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2011
Before Judges Lisa and Alvarez.
Defendant, Paul Wade, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a). Defendant was sentenced to pay a fine of $300, court costs of $33, a Violent Crime Compensation Board penalty of $50, and a Safe Neighborhood Fund Assessment of $75.*fn1 The final judgment authorized defendant to pay these sums at a rate of $20 per month through the Atlantic City Municipal Court. Finally, the order stayed the sentence pending the outcome of this appeal.
Defendant's sole argument before us is that "the record does not contain sufficient credible evidence to establish defendant's guilt beyond a reasonable doubt." We reject this argument and affirm.
This is a brief summary of what happened. On the morning of September 10, 2009, defendant and his wife were in the Atlantic County Courthouse in Atlantic City for a hearing regarding a domestic violence complaint she had signed against defendant. Also present was the wife's friend, Sharon Foster, who was going to testify on the wife's behalf against defendant in the domestic violence hearing. Another individual, Laura Mae Stanhope, a friend of both defendant and his wife, who had lived in their household for a time, was also there, having come with defendant.
The anticipated hearing was postponed in order to enable defendant time to obtain counsel. While the four individuals were waiting in the hallway for court personnel to process the necessary documents regarding rescheduling, the incident giving rise to the harassment complaint that is now before us occurred. According to Ms. Foster, while she was sitting in the hallway, defendant was walking back and forth to the water fountain. The wife, who had been sitting beside her, got up and walked over to talk to a court staff person. When defendant saw her by herself, he walked back toward her and said under his breath, while looking at her out of the corner of his eye, "I know your Ford and I'm going to blow it up." Ms. Foster felt intimidated and scared. She immediately stood up and said she would sign a complaint against defendant. Trial testimony revealed that defendant blamed Ms. Foster for encouraging his wife to sign the domestic violence complaint against him. And, as we have stated, Ms. Foster was at the courthouse as a proposed witness on the wife's behalf to testify against defendant in the domestic violence proceeding.
Defendant testified on his own behalf. He denied making any statement whatsoever to Ms. Foster.
When the wife was asked whether defendant said anything to Ms. Foster, she testified that as defendant walked by, "he mumbled something." She continued that because she is "a little bit hard of hearing," she "wasn't quite sure what he said." Notably, by the time of the trial of the harassment complaint, she and defendant had reconciled.
Ms. Stanhope testified that she was in the hallway waiting for defendant. When asked whether defendant said anything to Ms. Foster, Ms. Stanhope replied, "Not that I'm aware of. I didn't see his lips move at all towards her."
The municipal judge credited Ms. Foster's testimony and discredited defendant's testimony. He unequivocally found that defendant did say to Ms. Foster that he was familiar with her vehicle and was going to blow it up. In the circumstances in which the communication was made, the municipal judge further found that defendant made it with a purpose to harass and in a manner that was likely to cause annoyance or alarm. He therefore found that the State proved, beyond a reasonable doubt, all of the elements of harassment. See State v. Hoffman, 149 N.J. 564, 576 (1997). He therefore found defendant guilty.
In the Law Division, Judge Robert Neustadter applied the correct standard by making his own findings of fact based on the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings. State v. Locurto, 157 N.J. 463, 473-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). Judge Neustadter made detailed factual findings. He found Ms. Foster's testimony credible and rejected defendant's testimony "as not being totally forthright and truthful." He rejected defendant's contention that defendant did not say anything to Ms. Foster. Judge Neustadter, like the municipal judge, found that "defendant did, in fact, say what he's charged with saying: that he was going to blow up [Ms. Foster's] Ford." He therefore found defendant guilty upon his de novo review of the municipal court record, and he imposed the sentence we previously mentioned. This appeal followed.
Defendant argues that the evidence was insufficient to establish guilt beyond a reasonable doubt because the court relied only on Ms. Foster's testimony and "gave little or no weight to the testimony of the defendant or to the testimony of the other two witnesses who testified at trial in determining if a communication was indeed made by the defendant." Defendant acknowledges that the court found Ms. Foster more credible than defendant, but complains that the court made no credibility determination with regard to the other two witnesses.
We see no infirmity in the judge's analysis. Based upon his credibility determination, he properly found that the statement was made, thus relying on Ms. Foster's testimony. Conversely, the judge rejected defendant's contrary testimony that he made no statement at all to Ms. Foster, having discredited defendant's testimony.
As to the other two witnesses, it is noteworthy that the wife, who testified in this case on behalf of her husband, corroborated that defendant "mumbled something" to Ms. Foster as he walked by. She then said that because of her hearing deficit, she could not make out the words spoken. This testimony severely undermined defendant's contention that he said nothing at all to Ms. Foster. Judge Neustadter found this significant. He also found it significant that defendant had a motive to make a threatening and harassing comment to Ms. Foster under the circumstances existing at that time because he believed she instigated his wife to bring the domestic violence action against him and because Ms. Foster was in court for the purpose of testifying against him.
Finally, Ms. Stanhope's testimony was completely inconclusive. The fact that she did not see defendant say anything to Ms. Foster did not have the tendency to establish that, during the entire time these individuals were in the hallway, defendant did not say anything. No foundation was laid, for example, to establish that Ms. Stanhope was immediately next to defendant the entire time they were in the hallway, that she was continually watching him at all times while they were in the hallway, or the like.
The scope of appellate review of a de novo conviction by the Law Division following a municipal court appeal is "exceedingly narrow." Locurto, supra, 157 N.J. at 470. In Locurto, the Court reiterated the limited standard of appellate review as previously enunciated in Johnson. Id. at 470-71. That standard requires that a reviewing court must accept the factual findings of the Law Division if supported by substantial evidence in the record. Id. at 471.
Applying this highly deferential standard, based upon our review of the complete record, we have no hesitancy in concluding that Judge Neustadter's findings are amply supported by substantial credible evidence. Accordingly, we have no occasion to interfere with those findings.
Defendant's conviction is affirmed, and the stay of his sentence is vacated.