May 31, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MICHAEL PALLOTTA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-30-11.
Mark S. Carter argued the cause for appellant.
Jacqueline Choi, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Choi, of counsel and on the brief).
Before Judges Graves and Ashrafi.
Following a municipal court trial and a trial de novo in the Law Division, defendant Michael Pallotta was found guilty of simple assault, N.J.S.A. 2C:12-1(a). On appeal, defendant argues the Law Division judge failed "to make independent findings of fact" and there was "insufficient evidence to convict beyond a reasonable doubt." We have considered these arguments in light of the record and the applicable law and conclude they are clearly without merit. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
On May 31, 2009, Jack Losino, defendant's next door neighbor, signed a complaint alleging defendant struck "him in the face with a camera" that same day. The next day, his wife, Ella Losino, also signed a complaint alleging defendant assaulted her by "pushing her down on the ground, causing an abrasion on her right arm" during the same incident. On June 3, 2009, defendant signed a complaint against Ms. Losino alleging she "head butt[ed] him and caus[ed] a bruise to his head."
During the municipal court trial, Mr. Losino testified he was photographing defendant for possible future litigation purposes while defendant was "digging along the fence" that separates the parties' properties when the incident occurred. According to Mr. Losino, he and his wife were standing on the sidewalk in front of defendant's house when defendant "dropped the shovel, took his camera out and he came up charging into [Mr. Losino's] face with his camera." Ms. Losino then "stepped alongside and [defendant] turned, put the camera in her face and pushed her over." Mr. Losino further testified he suffered "a little scratch" on the bridge of his nose. Ms. Losino testified defendant "pushed [her] with his chest" causing her to fall to the ground. Additionally, the court viewed videos taken from surveillance cameras on the parties' properties.
On the other hand, defendant testified the only time he came into contact with Ms. Losino was "when she head butted [him]." Defendant admitted he did not suffer a bruise or seek medical attention as a result of the incident. Defendant also admitted he approached the Losinos to "make them feel uncomfortable."
The municipal court found defendant was "less than credible" with respect to his claim that Ms. Losino assaulted him, and the court found Ms. Losino not guilty. Based on the testimony and the videos, the court found defendant guilty of assaulting Ms. Losino, but not guilty of assaulting Mr. Losino.
On appeal to the Law Division, defendant argued he never "pushed or chest bumped" Ms. Losino. According to defendant, Ms. Losino's feet were "planted firmly on the sidewalk, " and as the "upper part of her body [was] leaning back . . . her body got top heavy and she fell down." Defendant conceded "she hit the sidewalk and . . . [had] some bruises on her arm." On de novo review, the court properly deferred to the credibility findings of the municipal court judge. See State v. Johnson, 42 N.J. 146, 161 (1964) (noting that a reviewing court should defer "to those findings of the trial [court] which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case"). The court concluded that defendant was guilty of simple assault because defendant's chest bump caused bodily injury to Ms. Losino.
The scope of our review is limited. It is improper for the Appellate Division to assess the credibility of witnesses and "to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We are limited to determining whether the Law Division findings "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.
Simple assault is committed when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). "Bodily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). "Not much is required to show bodily injury." N.B. v. T.B., 297 N.J.Super. 35, 43 (App. Div. 1997). "'Even the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey Law" Id. at 43 (quoting New Jersey v Bazin 912 F.Supp 106 115 (DNJ 1995))
In this case two judges made separate determinations that defendant was guilty of assaulting Ms Losino and the rule of deference is more compelling when "two lower courts have entered concurrent judgments on purely factual issues" Locurto supra 157 N.J. at 474 Moreover based on our independent examination of the entire record we conclude the proofs were sufficient to sustain defendant's conviction