Opinion
DOCKET NO. A-0437-14T4
05-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAWRENCE GORGA, Defendant-Appellant.
Daniel P. McNerney argued the cause for appellant (McNerney & McAuliffe, attorneys; Adolph J. Galluccio, on the brief; Mr. McNerney, on the supplemental brief). Annmarie Cozzi, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-08-1142. Daniel P. McNerney argued the cause for appellant (McNerney & McAuliffe, attorneys; Adolph J. Galluccio, on the brief; Mr. McNerney, on the supplemental brief). Annmarie Cozzi, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief). PER CURIAM
Defendant Lawrence Gorga, who was in his early fifties, punched his seventy-year-old disabled neighbor in the face, breaking his nose in several places, because defendant thought the neighbor was taking rocks from defendant's property. After a bench trial before Judge James J. Guida, defendant now appeals from his July 22, 2014 conviction of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count one), and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count two). Judge Guida sentenced defendant to two years of probation on each count, to be served concurrently, on condition he serve ninety days in jail, receive a mental health screening and follow all ensuing recommendations, and receive anger management counseling. Defendant was also ordered to have no contact with the victim or his family. The judge stated that the ninety days were to be served at the end of the probationary term, a reverse-split sentence, and the jail time would be vacated if defendant complied with all of the other conditions of probation. After reviewing the record in light of the contentions advanced in defendant's original appellate brief as well as those in his supplemental brief submitted after a change of counsel, we affirm.
The testimony reveals the following facts. On April 14, 2013, defendant was temporarily staying with his girlfriend because extensive renovations were being done on his house, and his recent ski accident had left him on crutches with a broken knee and torn meniscus. The victim, S.A., is a disabled Vietnam veteran who lived across the street from defendant's home for at least ten years. That afternoon S.A. and a friend were placing rocks on S.A.'s property to discourage drivers from driving on the property when negotiating the narrow street.
We use initials to preserve the privacy of the victim.
S.A. testified that he was an "80 percent disabled" veteran who has problems with his lower back and knees for which he wears "a brace and a belt."
Defendant and his girlfriend, who was driving, pulled up to S.A.'s home and defendant screamed, "you're stealing my fucking rocks." He drove off, returned and then added, "I will fuck your wife, . . . your daughter, . . . your mother, you[] fucking son of a bitch, you fucking thief." Defendant threatened that if S.A. didn't put the rocks back defendant would take his metal crutch and "shove it in your ass." Defendant drove off and returned several times. After hearing the yelling, S.A.'s son came out of the house. Defendant got out of the car, threatened to hit S.A. over the head with the crutch, threw his crutch at S.A.'s son and punched S.A. "square in the nose," knocking him temporarily unconscious. S.A.'s son intervened and began struggling with defendant until other neighbors and an unknown individual arrived at the scene, and pulled the son off of defendant. S.A.'s son then called the police. Defendant left before the police arrived. Defendant and his girlfriend gave a conflicting version of events, alleging that S.A.'s son started the fight by punching defendant in the head.
S.A., who was bleeding profusely, was taken by ambulance to the hospital, where he found out that his nose was fractured in several places. Although his injuries did not require an operation, he has experienced intermittent trouble breathing since then.
When located by the police later that day, defendant claimed that he had been attacked by S.A. and his son. Defendant had a scratch on his neck. He testified that S.A.'s son struck him, causing defendant to suffer a concussion and recurring headaches. At headquarters after his arrest the following day, defendant challenged the police lieutenant to perform pushups. The lieutenant agreed, and watched defendant perform 120 pushups in seventy-five seconds (defendant testified that he performed 125 pushups).
Defendant raises the following issues in his original brief on appeal:
POINT I: THE COURT BELOW SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1 AS TO COUNT 1 (AGGRAVATED ASSAULT) SINCE THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT SUFFERED A "SIGNIFICANT BODILY INJURY"; THE AGGRAVATED ASSAULT CONVICTION IS CONTRARY TO THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. 1, PAR. 10).Defendant raises the following issues in his supplemental brief:
POINT II: THE COURT BELOW ERRED IN FINDING DEFENDANT GUILTY OF AGGRAVATED ASSAULT; A JUDGMENT OF ACQUITTAL SHOULD BE ENTERED AS REASONABLE DOUBT EXISTS AS TO THE DEFENDANT'S GUILT AND THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE; THE AGGRAVATED ASSAULT CONVICTION IS CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. 1, PAR. 10).
POINT III: THE COURT BELOW SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1 AS TO COUNT 2 (THIRD-DEGREE TERRORISTIC THREATS) SINCE THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE CHARGE; THE TERRORISTIC THREATS CONVICTION IS CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. 1, PAR. 10).
POINT IV: THE COURT BELOW ERRED IN FINDING DEFENDANT GUILTY OF THIRD-DEGREE TERRORISTIC THREATS (COUNT 2); A JUDGMENT OF ACQUITTAL SHOULD BE ENTERED AS REASONABLE DOUBT EXISTS AS TO THE DEFENDANT'S GUILT; THE TERRORISTIC THREATS CONVICTION IS CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. 1, PAR. 10).
POINT I: THE CUMULATIVE EFFECT OF SEVERAL TRIAL COURT ERRORS DENIED THE DEFENDANT A FAIR AND IMPARTIAL TRIBUNAL AND REQUIRE A REVERSAL OF THE COURT'S FINDING OF GUILT (NOT RAISED BELOW).
A. UNNECESSARY AND PREJUDICIAL TESTIMONY OF THE INVESTIGATING POLICE OFFICERS, AND WITNESSES.
B. ALLEGED "BAD ACTS" OF THE DEFENDANT WERE IMPERMISSIBLY ADMITTED.
C. LT. KANE'S IMPROPER OPINION TESTIMONY WAS IMPERMISSIBLY ADMITTED TO THE FACT-FINDER.
D. THE TRIAL COURT'S IMPROPER CROSS-EXAMINATION OF THE DEFENDANT.
E. THE TRIAL COURT NEVER ACKNOWLEDGED THE FACT THAT A DOBERMAN PINCHER WAS PRESENT, NOR THE DEFENDANT'S DOCUMENTED INJURIES.
I
Defendant argues Judge Guida should have granted his motion for a judgment of acquittal at the end of the State's case as to both counts one and two. See R. 3:18-1. When a dismissal under this Rule is requested, the judge "must determine whether, based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony and all the favorable inferences drawn from that testimony a reasonable [factfinder] could find guilt beyond a reasonable doubt." State v. Dekowski, 218 N.J. 596, 608 (2014) (quoting State v. Williams, 218 N.J. 576, 594 (2014)).
We "should give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). We defer to the factual findings of the trial judge, so long as those findings are supported by sufficient credible evidence established in the record. State v. Locurto, 157 N.J. 463, 474 (1999).
Defendant claims, with regard to the charge of aggravated assault, that the State produced no evidence of the "significant bodily injury" element of the crime, N.J.S.A. 2C:12-1(b)(7). "Significant bodily injury" is defined by statute as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1(d). A photograph of defendant's face after the assault and his medical records were introduced into evidence, but no trial evidence was provided to us by defendant on appeal. See R. 2:6-1(a)(1) (requiring appellant to provide "such other parts of the record, excluding the stenographic transcript, as are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised"). We "may decline to address issues requiring review of those parts of the trial record not included in the appendix." Pressler & Verniero, Current N.J. Court Rule, comment 1 on R. 2:6-1(a) (2016) (citing Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002)). S.A. testified that he temporarily lost consciousness, his nose was broken, and he has suffered from breathing problems ever since the incident. These injuries are sufficient under the statute to constitute significant injury, even without the supporting documentation introduced at trial.
With regard to count two, charging third-degree terroristic threats, defendant argues that his language only amounted to a threat that expressed "fleeting anger," and did not satisfy the statutory definition of a "terroristic threat." "A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another." N.J.S.A. 2C:12-3(a). The Model Jury Charge is instructive insomuch as it distinguishes terroristic threats from the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4, where a defendant intended only to "alarm or seriously to annoy" a victim. In clarifying what amounts to a violation of N.J.S.A. 2C:12-3(a), the charge states: "The words or actions of the defendant must be of such a nature as to convey menace or fear of a crime of violence to the ordinary person. It is not a violation of this statute if the threat expresses fleeting anger or was made merely to alarm." Model Jury Charge (Criminal), "Terroristic Threats" (2004). Judge Guida found, based on the credible testimony of S.A. and his son, that defendant threatened to use his metal crutch as a weapon to assault S.A. and his son. As Judge Guida pointed out, the fact that defendant was gripping his crutch when he made the threats added an immediacy that would "convey menace . . . to the ordinary person." The judge did not err in refusing to dismiss either count after the State rested.
Defendant also argues that, based on the testimony of defendant and his girlfriend, the State failed to prove that defendant did not act in self-defense, which it must prove beyond a reasonable doubt. State v. Urbina, 221 N.J. 509, 525 (2015) (citing State v. Kelly, 97 N.J. 178, 200 (1984)). Judge Guida did not find defendant or his girlfriend credible. He appraised the witnesses' "demeanor, body language and any motives" and found defendant's use of "physical force was not in response to any unlawful force used by [S.A.], therefore, self-defense is unavailable to [defendant]."
S.A. and defendant gave two different versions of what took place. Judge Guida found S.A. and his son credible and found defendant and his girlfriend not credible. S.A. suffered significant injury, while defendant received a scratch. The judge's finding as to the lack of support for self-defense is well-supported by the credible evidence introduced at trial.
Defendant maintains as well that the trial judge should have found defendant not guilty of the two counts after the defense was presented, again arguing that the judge should have found defendant and his girlfriend credible. We reject this argument because, as we stated, we defer to the credibility determinations made by the trier of fact who had the benefit of observing the witnesses testify.
Finally, in defendant's supplemental brief, he points to various trial errors that he claims together require reversal. These issues were improperly raised initially in defendant's first appellate lawyer's reply brief. State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970). We granted defendant's motion to file a supplemental brief, but did not intend by that courtesy to allow a detour around the Rules. Because the State had the opportunity to respond to defendant's supplemental brief we will nonetheless briefly address these issues.
Defendant argues for the first time on appeal that prejudicial evidence was presented to the judge that caused him to render an unfair verdict. Defense counsel did not object to any of this testimony at trial. Consequently, defendant must demonstrate plain error; i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2. Under that standard, "[r]eversal of defendant's conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the [court] to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (second alteration in original) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
First, defendant argues that the testimony of three police officers who did not witness the assault, in combination with the victim and his son's testimony that defendant yelled derogatory comments about the police, served to prejudice the judge and was unnecessarily cumulative. Unlike a jury, a judge is able to recognize and disregard any evidence that is irrelevant or prejudicial. The State is also not required to submit only the amount of evidence necessary to convict. Cf. State v. Murphy, 36 N.J. 172, 178 (1961) ("the prosecutor, as the State's representative, has wide discretion with respect to the production of proof . . .").
Along the same lines, defendant alleges that the lieutenant's testimony in response to Judge Guida's question as to whether he and defendant knew each other—that "we've had numerous interactions with defendant"—was an impermissible admission of defendant's prior "bad acts" under N.J.R.E. 404(b). To the contrary, such testimony is not indicative of bad behavior by defendant. See State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div. 1987) (stating that an officer's statement that he knew defendant does not implicate the rule barring prior bad act evidence). Judge Guida noticed that the lieutenant and defendant called each other by their first names, and asked if they knew each other. After receiving the answer, the judge stated that he drew no conclusion as to whether the interactions between defendant and the police were "bad, good or indifferent" and did not delve deeper into the topic.
Defendant's other contention, that Judge Guida impermissibly allowed the lieutenant to give improper opinion testimony, also has no merit. The lieutenant's characterization of the incident as an "aggravated assault" was stricken from the record by the judge, who said he was not interested in opinions as to who was the aggressor.
Judge Guida's questioning of witnesses, including defendant, was absolutely proper, especially in a bench trial. See State v. Medina, 349 N.J. Super. 108, 130-31 (App. Div.), certif. denied, 174 N.J. 193 (2002); N.J.R.E. 614. The judge must fully understand the facts to render a just verdict. The testimony about defendant's pushup challenge was permitted by the judge to demonstrate defendant's significant physical capacity in spite of his broken leg, a relevant issue in this case.
Lastly, although Judge Guida did not mention a dog's presence or defendant's injuries, he gave a lengthy, detailed and thorough oral decision based on the relevant admissible evidence. Defendant raises no issue that persuades us that the judge erred in any way in his rulings during trial or when rendering the verdict.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION