April 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OMAR JOHNSON, A/K/A FRANKLIN JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0009-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2012 -
Before Judges Lihotz and Waugh.
Defendant Omar Johnson appeals from his conviction on one count of defiant trespass, contrary to N.J.S.A. 2C:18-3(b). We affirm.
We discern the following facts and procedural history from the record on appeal.
On March 2009, Johnson entered the Borgata Hotel Casino & Spa (Borgata) in Atlantic City. Joseph Garofolo, who was employed by Borgata, approached Johnson and told him he would be charged with defiant trespass. According to Garofolo, Johnson had been evicted from the casino on several prior occasions and was not permitted to be there. At one point during the confrontation, according to Garofolo, Johnson lunged at him and pushed him in the chest. He subsequently "elbowed" Garofolo in the stomach. Johnson was charged with defiant trespass and simple assault, contrary to N.J.S.A. 2C:12-1(a).
Following a trial in the Atlantic City municipal court on January 15, 2010, Johnson was convicted on both offenses. He appealed to the Law Division. A trial de novo on the municipal court record was held on April 26, 2010. The Law Division judge found Johnson guilty of defiant trespass, but acquitted him of simple assault. The judge imposed a custodial sentence of thirty days, in addition to fines and penalties. This appeal followed.
Johnson raises the following issues on appeal:
I. THE TRIAL COURT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS BY REFUSING TO PERMIT THE DEFENDANT TO GIVE TESTIMONY.
II. THE TRIAL COURT ERRED IN ADMITTING THE RECORDS OF PREVIOUS EVICTIONS AND RELATED TESTIMONY.
III. THE ADMISSION OF RECORDS AND QUESTIONING OF THE DEFENDANT THAT RELATED TO PRIOR BAD ACTS SHOULD HAVE BEEN EXCLUDED PURSUANT TO [N.J.R.E.] 404(B).
IV. THE WRITTEN REPORT OF THE SOLE STATE'S WITNESS SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
Our role in an appeal such as this one is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Pursuant to Rule 3:23-8(a), the Law Division judge renders a de novo determination on the record from the municipal court, but must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citations omitted), certif. denied, 205 N.J. 78 (2011).
With respect to evidential rulings, our standard of review is abuse of discretion. State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.) ("Trial judges are entrusted with broad discretion in making evidence rulings."), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citations and internal quotation marks omitted). Moreover, even when an evidentiary ruling is erroneous, reversal is not warranted unless it has the capacity to cast reasonable doubt regarding the verdict. State v. Macon, 57 N.J. 325, 336 (1971); see also R. 2:10-2.
Having reviewed Johnson's arguments in light of the applicable law and the record before us, we find them to be without merit, which do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Johnson argues that, on two occasions during the trial in municipal court, he was not permitted to make an open-ended statement, thereby depriving him of his right to testify on his own behalf. The facts do not support that assertion. Defense counsel called Johnson to testify. He conducted a direct examination and, following cross-examination, a brief redirect. The municipal judge did not prevent defense counsel from asking the specific questions he sought to ask, he only prevented Johnson from making an extended statement unrelated to counsel's questions. N.J.R.E. 611(a) requires a trial judge to "exercise reasonable control over the mode . . . of interrogating witnesses." We see nothing unreasonable in the requirement that Johnson's testimony be offered through the traditional question and answer mode of interrogation.
Johnson next argues that records of his prior evictions from Borgata should not have been admitted under the provisions of N.J.R.E. 803(c)(6), the business records exception to the hearsay rule. At the same time, although he acknowledges that knowledge is an element of defiant trespass,*fn1 he argues that evidence of the prior incidents should not have been admitted at all because they were prior bad acts excluded by N.J.R.E. 404(b). We disagree and find no abuse of the judge's discretion.
Garofolo testified that the documents at issue were prepared in the usual course of Borgata's business and described the procedures followed by his employer in that regard. We are satisfied that there was a sufficient basis to warrant their admission under N.J.R.E. 803(c)(6). And, because knowledge was an element of the offense, they were clearly admissible under N.J.R.E. 404(b), which specifically lists "knowledge" as a purpose for which such evidence may be admitted.
Finally, Johnson contends that Garofolo's own report concerning the present incident should not have been admitted, citing N.J.R.E. 612, concerning documents used to refresh memory, and N.J.R.E. 803(c)(5), concerning recorded recollection. In our review, however, the issue is really governed by N.J.R.E. 803(a), concerning prior statements of a witness.
We find no error in the admission of Garofolo's report to the extent it contained photographs of Johnson at the Borgata on the night in question. The photographs were identified by Garofolo. We note that the municipal court judge appropriately excluded the portions of the report that contained the hearsay statements of others. The remainder of the report was not admissible because Garofolo was present to testify and there was no charge of recent fabrication. N.J.R.E. 803(a)(2). Nevertheless, the admission of Garofolo's prior consistent statement, although improper, does not give rise to a reasonable doubt about the verdict. Macon, supra, 57 N.J. at 336; see also R. 2:10-2.
In summary, we find that the verdict on the trial de novo was supported by credible evidence that was appropriately in the record from the municipal court, and that any error in admitting portions of Garofolo's written report was harmless.