On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 26-10-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2011 -
Before Judges Messano and Yannotti.
Defendant Michael Paolucci appeals from his conviction for lewdness, N.J.S.A. 2C:14-4(a), following a de novo trial in the Law Division.
In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2012). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Because in rendering his verdict, the Law Division judge did not discuss the witnesses' testimony at length, and because some of the issues defendant raises before us relate to procedural matters in the municipal court, we reference the municipal court proceedings at length in order to place the issues in full context.
Defendant was represented in the Stillwater municipal court by counsel. Prior to the introduction of any testimony, defense counsel noted that five witness statements were provided in discovery, but only two of the witnesses were present in court. The prosecutor explained that two of the missing witnesses "went back to Europe," and the third "live[d] in Florida." All three were beyond the subpoena powers of the court.
Defense counsel also noted that a DVD existed, supplied by defendant the day before trial and given to the prosecutor that morning, and that he intended to introduce the DVD in evidence.
Without specifically ruling on the admissibility of the DVD, the judge proceeded to trial.
Maril Davenport testified that she was the rowing coach at Blair Academy. On April 17, 2008, at about 3:30 p.m., she and another coach were in a boat on Swartswood Lake accompanying the girls' rowing team during practice. Davenport spotted a man, later identified as defendant, in a third boat, naked, and "pleasuring himself." She instructed the girls to "turn and keep rowing away." Davenport was certain that the man was naked and masturbating.
She contacted the men's coach via "walkie-talkie," and together it was decided to contact the police. Davenport drove her boat to the boat launch where the New Jersey State Park Police boat was located. She pointed out defendant who was still in his boat on the lake.
Stephanie Guilmet, the other coach, testified that when she spotted defendant, she instructed the rowers by megaphone to steer away from his boat. The rowers had noticed defendant because "[t]hey were all looking at him and pointing." Guilmet testified that she was approximately twenty-five feet from defendant, who was naked. In her handwritten statement provided to the police that day, Guilmet claimed defendant "began motioning himself inappropriately, appearing to masturbate."
Andrew Cockerham, of the New Jersey State Park Police, testified that he received a 911 call from the Stillwater police and "went straight for [his] boat launch." Davenport and Guilmet were present in their boat and provided written statements of the incident. Cockerham and other officers drove their boat to defendant's boat on the lake and "told him to head back to the boat launch." Defendant was "nervous, shaking ...