On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 23-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2011 -
Before Judges Waugh and St. John.
Following a de novo trial in the Law Division, defendant Luis Lopez was convicted of harassment, N.J.S.A. 2C:33-4(a).
The charge stemmed from an incident that occurred on January 5, 2010, on Columbia Avenue in North Bergen. There was no conflicting testimony, as only the victim testified at trial. The victim, Carl Occhipinti, a sanitation worker for the North Bergen Municipal Utilities Authority (MUA), was collecting garbage near defendant's home. At the time of the incident, defendant was a former MUA employee who had recently been terminated. Defendant told Occhipinti to advise his boss, "Johnny" (John Shaw), that "I'll be back," which according to Occhipinti, meant that defendant was going to get his job back at the MUA. Occhipinti responded that he had nothing to do with defendant losing his job. Occhipinti testified defendant thereafter said to him "he's going to punch me out and he's going, he's going to kill me." The police were called and, upon arrival, Occhipinti informed them he did not feel threatened, but the statements did annoy him. When Occhipinti returned home, he became afraid. He believed defendant, who was a professional boxer, was capable of hurting him.
On January 14, 2010, Occhipinti filed a complaint with the North Bergen Police Department asserting defendant had threatened to kill him on January 5, 2010. Occhipinti indicated in both his January 14, 2010 statement and on cross-examination, that defendant may have threatened him because Occhipinti was subpoenaed to testify against defendant at defendant's termination hearing from the MUA. On January 27, 2010, the Hudson County Prosecutor's Office amended the complaint to a disorderly person's charge of harassment in violation of N.J.S.A. 2C:33-4(a).
Trial was held in the North Bergen Municipal Court on May 20, 2010. The judge found defendant guilty on July 15, 2010. Defendant appealed his conviction to the Law Division, and on January 7, 2011, a trial de novo was held before Judge Frederick J. Theemling. After setting forth the appropriate standards for a trial de novo, Judge Theemling clearly and comprehensively made findings of fact with regard to each element of the crime, entered conclusions of law, and found defendant guilty beyond a reasonable doubt.
Defendant raises the following issues on appeal:
THE TRIAL COURT ERRED IN ITS REVIEW DE NOVO BECAUSE THE STATE FAILED TO PROVE THE ELEMENTS OF THE ALLEGED OFFENSE BEYOND A REASONABLE DOUBT AND THE FINDINGS MADE BY THE COURT ARE NOT SUPPORTED BY THE EVIDENCE.
THE COMPLAINING WITNESS HEREIN FILED THE COMPLAINT AND CONTINUED THE PROSECUTION IN THIS MATTER IN ORDER TO GAIN AN ADVANTAGE IN A RELATED CIVIL MATTER.
Our review is governed by the substantial evidence rule. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). In other words, our analysis is limited to a determination of whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). We "consider only the action of the Law Division and not that of the municipal court." Id. at 175-76 (citing State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). In its review, the Law Division must make its own findings of fact and conclusions of law, giving deference to the municipal court's credibility findings. Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2012). In our review we also note that when the municipal court and the Superior Court enter "'concurrent ...