August 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CALVIN FIREALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0021-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2011
Before Judges J. N. Harris and Fasciale.
Defendant Calvin Fireall appeals from the Law Division's de novo finding of guilt of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a). We affirm.
These are the facts taken from the trial record generated in the Somers Point Municipal Court. Heather Martina and Fireall are the parents of a four-year-old child and had been engaged in ongoing custody disputes related to their son.
Martina testified that when she awoke on October 30, 2009, her cell phone indicated that it had received a series of "[fifty] to [fifty-five] missed restricted calls." Martina had not answered any of the calls, and she had no idea who had placed them until November 12, 2009, when Fireall told her that he had called her numerous times "about two weeks ago."
The next restricted call -- meaning that Martina's cell phone did not reveal the telephone number of the caller -- was received thirteen days later, on November 12, 2009. Martina answered the call and heard the voice of Fireall. There ensued a short discussion about a court case involving the couple's son, with Martina telling Fireall, "I want nothing to do with you," and then terminating the call.
Fireall called back the same day. Martina hung up. Then a third call was received by Martina from Fireall. Martina stated that Fireall said to her, "when [I] get full custody of our son, [you're] never going to see him ever again."
Martina testified further that throughout the day of November 12, 2009, she received "[l]ike [twenty] to [twenty-six]" restricted phone calls that she ignored. Finally fed up, Martina went to the Somers Point Police Department where she answered a restricted phone call that she claimed was from Fireall, and handed the cell phone to Sergeant Anthony Disciascio. The police officer told the caller to stop calling Martina's cell phone. The caller then said to Disciascio, "would you advise [Martina] that our son is sick."
Fireall also testified. He claimed that he was the one being harassed and victimized, and that he did not make the several restricted calls to Martina. Specifically, Fireall stated, "I did not call this girl. I wasn't present to call this girl. The people who were with me during the time said I didn't call this girl."
At the conclusion of the trial in the municipal court, Fireall was found guilty. The municipal court judge made the following sparse finding:
I've listened carefully to the testimony and I'm convinced beyond a reasonable doubt that you made the phone calls. Whatever that proves I'm not exactly sure. It proves that on this day you were trying to get a hold of her and you shouldn't have been. ... So all you're charged with is simple harassment. I'm going to find you guilty. There'll be a $56 fine, $33 costs. And then that's it.
Oh, yeah, there's a $50 violent crime and $75 safe streets, right.
Fireall then appealed his conviction to the Law Division.
There, the judge engaged in a de novo review of the record. He found that Martina's testimony was "truthful in the most part," and concluded that Fireall had "actually said that you're never going to see your son again as testified to by Ms.
Martina." Furthermore, the judge found that such comment "was made by [Fireall] for the purpose of alarming or seriously annoying [Martina]." In addition, the judge determined that the calls were made in such numbers over a period of two or three month period, numbering in excess of eighty calls. That cannot be considered or construed in any other logical sensible way as being anything less than an annoyance or an alarm to the person on the other end, the complainant in this case. I think that had to be the purpose with which Mr. Fireall made those multitude of calls.
Thereafter, the judge found Fireall guilty of violating N.J.S.A. 2C:33-4(a), and imposed the same sanctions as were imposed in the municipal court. The judge then stayed the sentence, and this appeal followed.
On appeal, Fireall raises the following point for our consideration:
THE APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE THERE IS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE LAW DIVISION JUDGE'S FINDING APPELLANT GUILTY OF A VIOLATION OF N.J.S.A. 2C:33-4(a).
Because we do not find this argument persuasive, we affirm.
When a municipal court decision is appealed to the Law Division, the review is de novo, although it gives "due regard to the municipal judge's opportunity to view the witnesses." State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). Since the Law Division is not in an advantageous position to judge the credibility of the witnesses, it should generally defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999); see R. 3:23-8(a) (regarding criminal trials de novo).
Conversely, the issue presented to this court is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not those made by the municipal court. State v. Puzio, 379 N.J. Super. 378, 383 (App. Div. 2005). But like the Law Division, we are not in a good position to judge credibility, and should therefore not make new credibility findings. Locurto, supra, 157 N.J. at 471-72. Instead, we should simply defer to the trial court's credibility determinations. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
In any criminal proceeding, including this one on appeal, the state has the burden to prove, beyond a reasonable doubt, all of the elements of the offense. State v. Hill, 199 N.J. 545, 558 (2009). This burden cannot be shifted to the defendant, even while asserting an affirmative defense. State v. Delibero, 149 N.J. 90, 99 (1997).
Harassment is defined in N.J.S.A. 2C:33-4(a), which provides in pertinent part:
Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]
"A finding of a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997). Annoyance under subsection (a) "means to disturb, irritate or bother." Id. at 580. "For purposes of [N.J.S.A. 2C:33-4(a)], there need only be proof of a single such communication, as long as defendant's purpose in making it, or causing it to be made by another, was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D. v. M.D.F., ___ N.J. ___, ___ (2011) (slip. op. at 21).
Fireall argues that the evidence did not support the offense of harassment, and there was insufficient evidence to suggest that he made any of the restricted phone calls. Although Fireall denies he acted in the manner described by Martina, that issue presented a question of credibility that the trial court resolved against Fireall. Not only did the court find that Fireall made the phone calls, but also that his conduct annoyed and alarmed Martina, disturbed her, and caused her to worry about ever seeing her son again, among other things.
The determination of Fireall's intent also presented an issue of credibility, particularly in view of the substantially conflicting testimony. Although the Law Division may have overstated the actual duration (two or three months, rather than a two week period*fn1 ) of the offending phone calls, or even maximized the number of restricted phone calls that Fireall directed to Martina, our analysis of the record satisfies us that the Law Division's de novo review was properly conducted and the court's findings were supported by substantial credible evidence.
Affirmed. The stay of sentence is vacated.