April 30, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARQUELIO ALVAREZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2011-008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 13, 2012 -
Before Judges Espinosa and Guadagno.
Defendant appeals from his conviction for lewdness, N.J.S.A. 2C:14-4(a), a disorderly persons offense. We affirm.
Defendant was arrested in South Mountain Reservation (Reservation) by Essex County Sheriff's Officer Edward Esposito, who was acting in an undercover capacity. At the trial in municipal court, defendant and Esposito gave different versions of the events leading up to that arrest.
Esposito testified that he had been assigned to patrol county parks in response to reports of lewd acts and sexual offenses. At approximately 6:55 p.m. on May 26, 2010, Esposito left an unmarked vehicle in the Reservation while another sheriff's officer maintained a surveillance post. It was still daylight, and approximately five to ten people were in the immediate area. Esposito testified that he walked north on a dirt trail and noticed that defendant was following him, approximately twenty to thirty feet behind. Esposito stopped. No words were spoken. Esposito testified that defendant then "pulled out his penis and masturbated his erect penis." Esposito placed defendant under arrest.
Defendant testified that Esposito approached him in the park and struck up a conversation with him. Defendant gave the following version of what happened next:
He was sticking his tongue out looking at me. And every time I look at him, he turn his face. Then from there, I told him that it was - that it was a public place. And we went - he say, walk with me. We walked down the trail, and then we went down further, like, deep in the forest. There was no people around me. There was nobody around us.
Defendant denied exposing his genitals to Esposito prior to their conversation. In response to questions whether he put his hands on his genitals in a "masturbatory action[,]" and whether his genitals were exposed, defendant answered, "Well, I was touching myself[,]" and "I wasn't even looking at it."
The municipal court judge made the following determination regarding the credibility of the two witnesses:
I was very impressed by the officer's testimony. He was very, very - as far as I was concerned I remember very logical in his testimony, very believable. . . .
There's nothing that I find from Mr. Alvarez's testimony that - nothing believable that could offset the officer's testimony. I believe that Mr. Alvarez's testimony was just a matter of trying to alibi his way out of this situation . . . .
The judge found defendant guilty of violating N.J.S.A. 2C:14-4. Defendant appealed. The Law Division judge agreed with the municipal court judge's assessment of credibility. He concluded that the State had proven defendant's guilt of lewdness beyond a reasonable doubt and sentenced him to a fine of $1000, a Violent Crimes Compensation Board assessment of $50, a Safe Neighborhood Service Fund assessment of $75 and court costs of $33.
In this appeal, defendant presents the following issues for our consideration:
THE SUPERIOR COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD THAT THE DEFENDANT/APPELLANT WAS NOT ENTITLED TO THE DOCUMENTS DEMANDED FOR IN THE SUBPOENA.
A. NEW JERSEY COURTS HAVE INTERPRETED THE CONFRONTATIONAL CLAUSE OF THE CONSTITUTION TO REQUIRE THE DISCLOSURE OF POLICE RECORDS IF THERE IS SOME FACTUAL PREDICATE WHICH WOULD MAKE IT REASONABLY LIKELY THAT THE OFFICER'S FILE WILL BEAR RELEVANT INFORMATION.
B. THE DOCUMENTS/MATERIAL THAT THE DEFENDANT SOUGHT TO OBTAIN
C. THE SUPERIOR COURT ABUSED ITS DISCRETION WHEN IT AFFIRMED THE MUNICIPAL COURT'S RULING TO QUASH THE SUBPOENA SEEKING TO OBTAIN THE AFOREMENTIONED RECORDS.
D. THE DEFENDANT WAS ABLE TO SHOW THAT A FACTUAL PREDICATE EXISTED TO DEMONSTRATE THAT IT WAS REASONABLY LIKELY THAT OFFICER ESPOSITO'S FILE WOULD CONTAIN RELEVANT INFORMATION TO THE CASE AT BAR.
THE COURT ABUSED ITS DISCRETION WHEN IT RULED THAT ESPOSITO, WHO ADMITTED LOOKING FOR LEWD CONDUCT, WAS A NON CONSENTING INDIVIDUAL WHO WOULD BE AFFRONTED OR ALARMED BY ALVAREZ'S ALLEGED CONDUCT.
We have reviewed these arguments in light of the record and the applicable legal standards and conclude that they lack merit.
Defendant first argues that reversible error was committed when the Law Division held that he was not entitled to documents demanded in a subpoena. Prior to trial, defendant issued a subpoena to the Essex County Sheriff's Office, demanding the following:
1. Any and all police reports and complaints filed by Officer EDWARD ESPOSITO for sexual misconduct and lewd conduct and other disorderly persons offenses in which he was an investigating, arresting officer or part of any team doing the same.
2. Officer EDWARD ESPOSITO'S disciplinary record.
3. Any and all civilian complaints filed against Officer EDWARD ESPOSITO.
4. Any documents relating to Officer EDWARD ESPOSITO'S assignment on May 26, 2010.
5. Any and all police complaints and reports filed by the Sheriff's Department or its officers for sexual misconduct or lewd conduct originating at the South Mountain Reservation in Millburn, N.J. since January, 2008.
6. Any documents relating to Officer EDWARD ESPOSITO'S assignment on July 16, 2010.
7. Any and all documents and reports relating to the shooting and death of Defarra Gaymon, on or about July 16, 2010 at Branch Brook Park in Newark, N.J.
It was defendant's theory then and now that these documents were necessary for him to effectively cross-examine Esposito and impeach his description of the events as unsolicited. He contended that, on at least two other occasions, Esposito had alleged that persons he arrested had approached him and performed unsolicited sexual acts and that the materials would show additional instances in which he made such allegations.
In a letter setting forth his reasons for quashing the subpoena, the municipal court judge stated:
I would permit an in camera inspection of the disciplinary file of Sheriff's Officer Esposito. I am informed that there is no disciplinary file for this officer. As such that request is moot.
The request relating to the copies of all prior arrest reports of Officer Esposito is denied as it is a "fishing expedition" by counsel for defendant and not related to the arrest of this defendant.
The Law Division judge agreed, stating "[t]here is no reason offered beyond mere speculation why most of the officer's reports would contain identical fact scenarios." He concluded that the requests were "too broad and tenuously linked to the trial matters."
Although the right to confront a witness is an essential element of a defendant's rights under the Sixth Amendment to the United States Constitution and Article 1, para. 10 of the New Jersey Constitution, that right "does not permit unlimited cross-examination." State v. Messino, 378 N.J. Super. 559, 582-83 (App. Div. 2005), certif. denied, 185 N.J. 297 (2005). Rather, "[t]he scope of cross-examination rests within the sound discretion of the trial judge." Id. at 583. Therefore, "[w]e will not interfere with the trial judge's authority to control the scope of cross-examination 'unless clear error and prejudice are shown.'" Ibid. (quoting State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002)). The court's decision to quash the subpoena also involved a decision to limit discovery, which similarly is a matter that lies within the sound discretion of the trial court. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
The municipal judge was willing to conduct an in camera inspection of Esposito's disciplinary file but found that request moot when he was advised that none existed. Therefore, we need not consider whether there was a sufficient showing to warrant the disclosure of the confidential personnel records sought. See State v. Harris, 316 N.J. Super. 384 (App. Div. 1998). The remaining demands were for all reports and complaints filed by Esposito for similar offenses; all complaints and reports filed by the Sheriff's Office for similar offenses at the Reservation from January 2008 through August 2010; all documents relating to Esposito's assignment on the day of arrest and on the date he shot Defarra Gaymon - approximately two months after defendant's arrest - during the course of a similar investigation; and any and all documents relating to that shooting death.
The Law Division judge delivered an extensive oral opinion in this matter and described defendant's argument regarding his request for other reports as "if records reveal that the officer arrested other individuals under identical circumstances, then it may cause the fact finder to doubt the officer's version of the facts." The judge rejected that argument, stating, "I find that the key word in defendant's argument is if, in quotes, close quotes. There is no reason offered beyond mere speculation why most of the officer's reports would contain identical fact scenarios." The judge also described two articles submitted by defendant in support of his demand. One involved the Gaymon shooting and the other reported that the Sheriff's Office had been engaged in stings investigating lewd conduct for nearly five years, arresting more than two hundred people for such conduct since 2005. The judge observed that neither article alleged that Esposito engaged in unethical or illegal conduct and, to the contrary, the article regarding Gaymon's death stated that Esposito cooperated with the investigation and was allowed to return to work without incident. The judge concluded that "the basis for defendant's application is strictly speculative without any substance."
We are satisfied that the Law Division did not abuse its discretion in denying defendant access to the documents sought here and that the lack of those documents did not impermissibly limit the scope of cross-examination available to defendant.
II Defendant also argues that his conviction cannot be sustained because Esposito was not a "non-consenting person" when he observed defendant's conduct. We disagree.
N.J.S.A. 2C:14-4(a) provides:
A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other non-consenting persons who would be affronted or alarmed.
The statute is intended to distinguish public sexual crimes from private sexual acts. State v. Zeidell, 154 N.J. 417, 426 (1998); State v. Ramos, 203 N.J. Super. 206, 209 (Law Div. 1985). Defendant relies upon State v. Capetta, 180 N.J. Super. 300 (Law Div. 1981) as support for his argument that Esposito's apparent consent precluded a conviction here. In Capetta, the Law Division reversed the lewdness conviction of a dancer, observing that, as opposed to being non-consenting, "[t]he unequivocal testimony . . . was that the patrons approved of defendant's actions." Id. at 303.
Defendant's reliance is misplaced. First, his actions did not occur within a venue limited to approving participants but in a public park. Second, the factual premise to defendant's argument - that Esposito's actions signaled his consent - was refuted by the testimony the court found more credible. In light of the substantial deference paid to the credibility determinations made by the trial judge, State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Barone, 147 N.J. 599, 615 (1997), we accept the version of events provided by Esposito, which presented no issue of consent on his part. Accordingly, this argument lacks merit.
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