Opinion
DOCKET NO. A-4690-12T1
03-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CESAR EGAS, Defendant-Appellant.
Eric M. Mark argued the cause for appellant. Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2013-13. Eric M. Mark argued the cause for appellant. Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a trial de novo on the record of the Essex County Special Remand Court, the Law Division judge convicted defendant Cesar Egas of harassment, N.J.S.A. 2C:33-4(b). The judge imposed a suspended thirty-day jail sentence, one-year probation, plus the appropriate fines and fees. After reviewing the record in light of the contentions advanced on appeal, we affirm the conviction, but reverse and remand for resentencing.
The Special Remand Court was established through cooperation of the Essex County criminal division, the municipal division and the Essex County municipal courts. This court hears cases that involve criminal complaints that are downgraded to disorderly persons offenses, over which the county prosecutor's office desires to retain jurisdiction rather than return the cases to the originating municipal court.
We derive the facts from the trial record. This action arose on March 9, 2012, at Newark Liberty International Airport. The victim, O.H., was at the airport awaiting a flight to Korea where she was to undergo eye surgery. Defendant, a United Airlines representative, assisted O.H. with check-in and her bags. While she sat on a bench in the check-in area, defendant approached her and, because of her vision problem, offered to guide her to her departure terminal. On the way, defendant and O.H. went to a coffee shop for coffee where they remained for thirty minutes. While there, defendant gave O.H. his business card, and obtained her e-mail address. They proceeded to the monorail to go to her terminal.
O.H. testified that, once they boarded the monorail, "[defendant] suddenly changed, in a strange way." Defendant told her he "liked her" and began to touch her, grab her around the waist, kiss her, and lick her face and neck. She told him to stop three times but he continued to make advances towards her. She testified she did not like him touching her, and it made her feel angry and ashamed.
When O.H. disembarked from the monorail, she approached a Transportation Security Administration (TSA) officer and reported someone tried to rape her on the monorail. A United Airlines representative called the Port Authority police and O.H. gave the statement that formed the basis for the charge.
On March 9, 2012, defendant was charged with criminal sexual contact, N.J.S.A. 2C:14-3(b). The Essex County Prosecutor downgraded the charge to harassment, N.J.S.A. 2C:33-4(b), a petty disorderly persons offense. On January 15, 2013, the trial took place in municipal court. Upon hearing the testimony, the judge credited O.H.'s testimony that she "did not welcome defendant's intentions and told him so, and attempted to stop him." The judge found O.H. told defendant, at least three times, that she did not welcome his touches. He also concluded that "[defendant] did not take no for an answer" and at that point, the elements of harassment had been met. While the judge noted O.H.'s testimony did not precisely correspond with the allegations stated in the complaint, he found her testimony regarding defendant's conduct on the monorail unequivocal. The judge rendered an oral decision on February 4, 2013, and found defendant guilty of harassment.
Defendant appealed his conviction to the Law Division. On May 3, 2013, the court held a de novo trial. In a written and oral opinion, the Law Division judge found defendant guilty and imposed the same sentence as the municipal court.
On appeal, defendant raises the following claims:
POINT I. BECAUSE THE LAW DIVISION EFFECTIVELY ADOPTED THE TRIAL COURT'S DECISION WITHOUT MAKING ITS OWN FINDINGS, THIS COURT SHOULD REVIEW THE TRIAL COURT'S DECISION.
POINT II. THE MUNICIPAL COURT DID NOT FIND A SPECIFIC INTENT TO HARASS AND THE LAW DIVISION'S FINDING IS NOT SUPPORTED BY THE EVIDENCE.
POINT III. THE TRIAL COURT DID NOT FIND THE VICTIM CREDIBLE AND THE COMPLAINANT'S INCREDIBLE AND IMPLAUSIBLE TESTIMONY MAKE IT IMPOSSIBLE FOR ANY COURT TO DETERMINE WHAT HAPPENED OR THAT SOMEONE ACTED WITH AN INTENT TO HARASS.
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) (quoting 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 (quoting 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 (2015). In our review we also note that when the municipal court and the Superior Court enter "'concurrent judgments on purely factual issues,'" those findings should not be disturbed "'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).
On appeal, defendant contends that the municipal court failed to find defendant had a specific intent to harass pursuant to N.J.S.A. 2C:33-4(b), and the Law Division erred in finding O.H. credible. We reject these arguments.
In pertinent part, N.J.S.A. 2C:33-4 provides that, "a person commits a petty disorderly persons offense if, with purpose to harass another, he: (b) Subjects another to . . . other offensive touching[.]"
In a comprehensive written decision, the Law Division judge set forth the applicable law and summarized the facts of the case. She noted the municipal court adopted O.H.'s version of events and found her credible. Giving due deference to these findings, the Law Division judge found defendant "offensively touched [O.H.] when he kissed her, licked her and grabbed her without consent and after she told him to stop three times." The court inferred defendant's purpose to harass from "his continued advances and offensive touching of [O.H.] after she clearly expressed her wish for him to stop."
Upon our review of the record, we are satisfied that each and every element of the offense, as defined by the statute, has been established by the credible evidence. O.H clearly rebuffed defendant multiple times on the monorail, and his continued touching despite the repeated rebuffs demonstrates the required intent, thereby satisfying the elements of the offense. N.J.S.A. 2C:33-4. Accordingly, we conclude the trial court's findings of fact and the legal conclusions are amply supported by the credible evidence in the record. Johnson, supra, 42 N.J. at 162.
The remaining issue for our consideration is the propriety of the sentence imposed by the court. It is well settled that when reviewing a trial court's sentencing decision, an appellate court "may review and modify sentences only when the trial court's determination was 'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). Within these limitations, however, an appellate court can
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Id. at 6 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984))]
At issue in the present case is the first requirement, violation of authorized dispositions as set forth in the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:43-2. On a disorderly persons offense, a judge may suspend the imposition of a sentence, N.J.S.A. 2C:43-2(b); or may impose probation, N.J.S.A. 2C:43-2(b)(2). The judge cannot do both. See Cannel, New Jersey Criminal Code Annotated, N.J.S.A. 2C:43-2 cmt. 5 (2014-15); See also State v. Sciosia, 200 N.J. Super. 28, 32, n. 2 (App. Div. 1985) ("Unlike prior law, the sentencing court under the Code is permitted to directly impose a probationary term. N.J.S.A. 2C:43-2b(2). It is no longer proper for the court to impose a custodial term and suspend execution of all or a portion of it."); State v. Cullen, 351 N.J. Super. 505, 507-508 (App. Div. 2002) (imposition of a "suspended" specific term of jail time or years in prison is not an authorized disposition.)
In this case the judge imposed a "suspended thirty-day" term. Such a sentence is not an authorized disposition under N.J.S.A. 2C:43-2. Therefore, we conclude the sentence imposed by the court is illegal and must be vacated. We reverse and remand for resentencing in accordance with N.J.S.A. 2C:43-1, consistent with this opinion.
Affirmed as to the conviction. Reverse and remand the sentence. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION