Opinion
DOCKET NO. A-1405-13T1
04-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRED R. BECKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, of counsel and on the brief). Frederic M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-064. Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, of counsel and on the brief). Frederic M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief). PER CURIAM
Defendant Fred R. Becker appeals from an October 7, 2013 judgment of the Law Division, after its de novo review of the municipal court record, finding him guilty of harassment in violation of N.J.S.A. 2C:33-4(a). Defendant was sentenced to pay a $250 fine, plus the appropriate fees and court costs. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The circumstances in the matter are as follows. In January 2012, defendant made a complaint to the Rockaway Township Police Department (RTPD) concerning Patrolman Clifton Gauthier. Defendant's complaint ultimately resulted in the RTPD taking administrative action against Gauthier, who received a verbal reprimand for failing to call in on the radio while his police vehicle was parked at his aunt's house on South Brookside Avenue.
Additionally, on January 25, 2012, defendant left a voice message on Gauthier's personal voicemail box at the RTPD stating:
Good Morning Officer Gauthier, Gauthier, whatever the pronunciation of your name is, Kippy. This is your friend Freddy Becker. I seriously suggest that when you want to eat breakfast brother, that you do not go ahead and leave number 25 RTPD police vehicle backed into your [aunt's] driveway [on Brookside Avenue], while she goes ahead and cooks your ass breakfast, when you are supposed to be out on the road, on the clock doing your job. I let you go the last time. You better go ahead and straighten up and fly right brother, because I got you on videotape, date, time and I will shove it right up your fucking ass like I should have done a long time ago when you pulled that shit with me last year in January. And if you want to go ahead and see me personally I am still available for consultation. You can choose the music it will be a very short
dance. I wish I could tell you Semper Fi, but I got no use for you.
As a result of receiving this message, on February 10, 2012, Gauthier charged defendant with harassment. At the municipal court trial, Gauthier characterized the tone of defendant's voice as "[t]hreatening, affirmative." He viewed the message as threatening, and stated that it "created alarm."
Previously, an unspecified event involving defendant and Gauthier had resulted in defendant signing complaints against Gauthier in late December 2010. According to Gauthier, that matter was investigated and then closed. Nonetheless, it too had triggered a series of messages left by defendant on Gauthier's voicemail box at RTPD headquarters. In the first such message left by defendant on January 2, 2011, defendant stated:
Officer Gauthier, I am Fred Becker, 2 January. I am going to go ahead and make you aware of something. I do not even know who you are, but I am going to tell you something, with your IA Officer, Lieutenant Zolar, another asshole, and the rest of you fucking Keystone cops, talking shit out the side of your mouth, bad rapping me to people I know, including your family members, about allegations that are unsubstantiated. If I had a problem with you, you would know about it. I am going to take this right to the prosecutor's office. We will see what Mr. Bianchi has to go ahead and say about this fucking shit. If you have a personal problem with me, like I told the Chief, and I told the sergeant who took the IR here, I
will be more than happy to meet with you anywhere, anytime, with or without seconds in attendance, you can even choose the music, it will be a short fucking dance, I will show you who the fuck is done.Gauthier testified that he "found that message alarming."
Two days later, defendant left a second voicemail message for Gauthier at police headquarters. Defendant stated:
Officer Gauthier, Fred Becker, 4 January. If you have the opportunity and inclination, please go ahead and communicate with Lieutenant Zolar. I cannot undo what I have said. I do not know you, I wish you no malice. I am no head hunter. I do not seek your scalp. As far as I am concerned you and I are clean. I am not the guy that you want. I am one of the good guys. Semper Fi, prosperous, safe, healthy new year to you and yours. If I wanted you brother, my face would be the face that you see. I am no scumbag. I have been a fuck-up a lot of times in my life, but I ain't no scumbag brother. Be well.Gauthier was not alarmed by this message.
On May 12, 2011, after defendant apparently chose not to pursue his complaints against Gauthier, he left the officer a third voicemail message:
Officer Gauthier, 12 May, Fred Becker. Forgiveness is greater than vengeance. Compassion is more powerful than anger. I have conversed with Sergeant Risoto from the prosecutor's office. Lieutenant Zolar and the Captain were in my kitchen. I signed the liability release for the second time. As far as I am concerned this matter is concluded. I do not appreciate being bad rapped. I do not appreciate you being
directly or indirectly responsible for damage done to my vehicle because of damage done to a municipal vehicle and civilian vehicles on the Christmas Eve party happening at your aunt and uncle's house. I felt it incumbent on me to communicate this to you. Not to be redundant this matter is in fact concluded. I do not know what your problem is with me. As a multiply decorated retired marine, and you being a multiply decorated Iraqi marine, of all things you should know that if they wanted your scalp I was not going to go ahead and hold your head up for them to go ahead and take it. I would appreciate it if you just leave me the hell alone. Unless I do something unlawful where I deserve to be taken to the carpet you leave me the hell alone. I am doing this because of my relationship with your extended family and your old man the Dutchman. I wish I could tell you Semper Fi. I am Semper Fi, apparently you are not.According to Gauthier, while he found this message annoying, he did not find it alarming. He also testified that, but for the four voicemail messages, he had no contact with defendant since the December 2010 incident.
Defendant did not testify. Lieutenant Mark McParland, the RTPD's current Internal Affairs officer, was called as a defense witness. McParland identified a January 26, 2012 letter that he sent to defendant, indicating that "[a]ppropriate administrative action" was being taken against Gauthier as a result of defendant's complaint. The letter was then entered into evidence as defense exhibit three (D-3).
In a cogent written opinion, the municipal judge, found that defendant, with specific purpose, made a number of communications to Gauthier that were "designed to invite physical interaction" through his reference to allowing Gauthier to "choose the music." The court concluded that defendant acted with the purpose to harass Gauthier when he used crude language in threatening to "shove it right up your fucking ass." Additionally, the court found Gauthier credible, and that defendant's voicemail communications were likely to cause Gauthier annoyance or alarm. The court determined that defendant's actions constituted harassment in violation of the statute and found defendant guilty.
For reasons that are unclear from the record, the case was heard in Rockaway Township Municipal Court by the Township of Randolph municipal court judge.
In his appeal to the Law Division, defendant presented four main arguments: (1) the State failed to prove the harassment charge beyond a reasonable doubt; (2) his conviction under the harassment statute violated his First Amendment right to free speech; (3) the denial of his motion for additional discovery prevented the court from examining the voicemail messages in light of the totality of the circumstances; and (4) the municipal court erred in denying his motion for a change of venue. In reviewing these arguments, Judge Mary Gibbons Whipple applied the correct standard by making her own findings of fact based on the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings. See State v. Locurto, 157 N.J. 463, 473-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964).
Upon review of the evidence presented to the municipal court, Judge Whipple made detailed factual findings and carefully addressed each of defendant's arguments. The judge initially determined that the charged conduct "must be examined in light of the totality of the circumstances," including the history of the parties' relationship. She concluded that
defendant did use language and tone likely to cause alarm with the sole intent to harass. Specifically, . . . defendant threatened to shove something up the patrolman's ass and used language suggesting that they engage in a physical altercation. [D]efendant had no alternative, legitimate purpose in contacting . . . Patrolman Gauthier. [D]efendant displayed the requisite intent to harass and [] the State has proven beyond a reasonable doubt the elements of harassment under N.J.S.A. 2C:33-4(a).
Discounting defendant's First Amendment argument, the court noted that N.J.S.A. 2C:33-4(a) is aimed not at the content of the offending statements, but rather at the manner in which they are communicated (citing State v. Hoffman, 149 N.J. 564, 583 (1997)). In this case, the judge concluded that "defendant is not convicted based upon the content of his speech, but rather for the criminal purpose of harassing Patrolman Gauthier."
Next, Judge Whipple rejected defendant's argument that the municipal court's denial of defendant's motion for additional discovery denied him a fair trial. Specifically, defendant sought to compel production of any Internal Affairs documents pertaining to Gauthier as well as the officer's personnel file. Citing the controlling standards enunciated in State v. Jones, 308 N.J. Super. 15 (App. Div. 1998), and State v. Kaszubinski, 177 N.J. Super. 136 (Law Div. 1980), the judge concluded:
[I]n this case [] defendant failed to prove that the desired information was necessary to his defense. A significant portion of Patrolman Gauthier's testimony discussed defendant's prior complaints lodged against Patrolman Gauthier and that Patrolman Gauthier was subject to disciplinary action as a direct result of one of those complaints. The additional discovery would have been unnecessary and duplicative, as Patrolman Gauthier's testimony [and] the Internal Affairs letter admitted into evidence as D-3 sufficiently established the [parties'] history. Consequently, it is clear that the Municipal Court considered the . . . history between . . . defendant and Patrolman Gauthier and the context of the voicemail exchange. Moreover, [] defendant failed to demonstrate that the need for this evidence outweighed the public interest in maintaining [] confidentiality.
Finally, the court found defendant's basis for requesting a change of venue in the municipal court "unpersuasive." The court, therefore, found defendant guilty upon de novo review of the municipal court record. After allowing defendant and defense counsel the opportunity to address the court, the judge imposed the sentence previously mentioned. This appeal followed.
On appeal, defendant renews his arguments before the Law Division. Additionally, he argues that he was denied the right of allocution at sentencing.
Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). As we have noted, "[t]he Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (second alteration in original) (quoting Johnson, supra, 42 N.J. at 157). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).
Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. Ibid. (citing Locurto, supra, 157 N.J. at 474). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
Having considered defendant's contentions in light of the record and the applicable legal principles, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Harassment occurs when, "with purpose to harass another," a defendant "[m]akes . . . a communication or communications" . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). For purposes of subsection (a), a single act can be sufficient, "as long as defendant's purpose in making it . . . was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D. v. M.D.F., 207 N.J. 458, 477 (2011). "The harassment statute defines the violation in terms of annoyance or alarm, and we have held that for purposes of subsection [(a)], '[a]nnoyance means to disturb, irritate, or bother.'" Ibid. (alteration in original) (quoting Hoffman, supra, 149 N.J. at 580).
As Judge Whipple correctly recognized, "courts must consider the totality of the circumstances to determine whether the harassment statute has been violated." Cesare v. Cesare, 154 N.J. 394, 404 (1998). Also, as the judge aptly noted, "[a] finding of a purpose to harass may be inferred from the evidence presented." Hoffman, supra, 149 N.J. at 577 (citing State v. McDougald, 120 N.J. 523, 566-67 (1990)).
Based on our review of the record, we are satisfied that there is sufficient credible evidence that defendant committed an act of harassment under N.J.S.A. 2C:33-4(a). The January 25, 2012 voicemail alone, using vulgar and "offensively coarse language," qualifies as such since its only purpose was to disturb or annoy Gauthier. Moreover, that message, when viewed in context with defendant's January 2, 2010 voicemail message, plainly proposed to engage Gauthier in a physical altercation. Clearly it was a "communication" made for the purpose of harassment and in a "manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a).
We also reject defendant's argument that he was denied the right of allocution at sentencing. This right is codified in Rule 3:21-4(b), which in relevant part provides:
Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment. The defendant may answer personally or by his or her attorney.Here, prior to imposing sentence, Judge Whipple addressed defendant and his attorney and allowed each to speak in mitigation of punishment. It is only when their remarks veered into extraneous and irrelevant matters that the court curtailed those remarks. We discern no error.
In summary, our canvass of the record reveals that Judge Whipple thoroughly addressed each of defendant's arguments, and that her analysis of the issues raised was comprehensive and correct. Accordingly, we have no occasion to disturb those findings and conclusions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION