Opinion
DOCKET NO. A-4351-12T2
04-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DENNIS SABOL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jennifer J. Pinales, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-07-1293. Joseph E. Krakora, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jennifer J. Pinales, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
A judge convicted defendant Dennis Sabol of the petty disorderly persons charge of harassment, N.J.S.A. 2C:33-4(c), and the disorderly persons charge of committing criminal mischief causing less than $500 of damage, N.J.S.A. 2C:17- 3(a)(1) and (b)(2), for which he was sentenced to six months in jail on April 8, 2013. Defendant's bail was continued pending appeal on condition that he have no contact with either the municipal or superior court judges involved with his case. We now affirm the convictions and, exercising original jurisdiction, resentence defendant to thirty-five days in jail, the time he served in custody prior to sentencing.
He received a concurrent three-month jail sentence for the harassment conviction, although the maximum sentence for a petty disorderly persons offense is thirty days in jail. N.J.S.A. 2C:43-8. The Judgment of Conviction (JOC) incorrectly cites to N.J.S.A. 2C:33-4.1, the fourth-degree crime of cyber-harassment, rather than N.J.S.A. 2C:33-4(c).
The charges stem from defendant's behavior after a March 17, 2011 trial in Bayonne Municipal Court. Defendant and another individual were tried on cross-complaints for simple assault, N.J.S.A. 2C:12-1(a)(1). During the course of his testimony, defendant became belligerent upon questioning by the judge and said "Fuck you" numerous times to the judge, who cited defendant for contempt twice. Although he found defendant to be incredible, the municipal judge ultimately found both parties not guilty. The judge then imposed a $100 sanction upon defendant for his contempt in the face of the court. R. 1:10-1(b).
Several weeks after the municipal trial, on April 13, 2011, two of the windows of the municipal judge's private law office were broken by two rocks. One rock had written on it with a black marker, "Not honest you evel(sic)," "[last name of municipal judge], you going to pay," "You better in hell than in courtroom," "lier(sic)," "No justice," "Die soon please," and a face with a frown and an X for one eye. The other rock had on it "watch your back" and "[last name of municipal judge] wrong side of law."
We omit the name to protect the privacy of the victim.
A detective asked defendant to write out the words found on the rocks. The detective dictated the words to defendant, who misspelled "evil" exactly as it had been misspelled on the rock. Defendant then consented in writing to a search of his car, where he had been living. A black Magic Marker Sharpie was found in defendant's car. Defendant did not testify.
On appeal, defendant raises the following issues:
POINT I: ALTHOUGH THIS MATTER WAS A BENCH TRIAL, THE COURT ADMITTED SO MUCH INADMISSIBLE, IRRELEVANT AND PREJUDICIAL EVIDENCE THAT DEFENDANT WAS DENIED A FAIR TRIAL.
A. JUDGE []'S FACTUAL FINDINGS IN AN UNRELATED MUNICIPAL COURT MATTER WERE INADMISSIBLE AND PREJUDICIAL.
B. EVEN IF THE TRIAL COURT WAS ABLE TO IGNORE THE INADMISSIBLE EVIDENCE CONCERNING JUDGE []'S FACTUAL FINDINGS IN THE UNRELATED CRIMINAL CASE, IT CANNOT OVERCOME THE PREJUDICE TO DEFENDANT OF JUDGE []'S OPINION TESTIMONY REGARDING DEFENDANT'S CREDIBILITY.
C. DETECTIVE KUBERT'S TESTIMONY REGARDING WHAT MEMBERS OF JUDGE []'S STAFF TOLD HIM ABOUT DEFENDANT WAS INADMISSIBLE HEARSAY AND VIOLATED THE CONFRONTATION CLAUSE.
D. DETECTIVE KUBERT'S TESTIMONY THAT HE BELIEVED DEFENDANT'S HANDWRITING EXEMPLARS MATCHED THE WRITING ON THE ROCKS RECOVERED FROM JUDGE []'S LAW OFFICE WAS INADMISSIBLE LAY OPINION TESTIMONY.
POINT II: WITHOUT THE INADMISSIBLE EVIDENCE DISCUSSED ABOVE, THERE WAS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUUPPORT THE COURT'S GUILTY FINDING.
POINT III: ALTHOUGH DEFENSE COUNSEL FAILED TO OBJECT TO THE CHALLENGED TESTIMONY, ITS ADMISSION CONSTITUTED PLAIN ERROR REQUIRING THAT DEFENDANT'S CONVICTIONS BE REVERSED.
We solicited supplemental briefs from both parties on the issue of whether defendant's sentence was excessive, particularly in light of the trial judge's colloquy with defendant the day before trial.
None of the evidentiary issues raised by defendant have sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments. All of the evidentiary points raised by defendant on appeal were not raised by his attorney at his bench trial and thus must meet the high burden imposed by plain error, i.e., a finding that the unobjected-to errors had a clear capacity to produce an unjust result. R. 2:10-2; State v. Maloney, 216 N.J. 91, 104 (2013) (citation omitted). Additionally, we note our usual deference to evidentiary decisions made by a trial judge. State v. Granskie, 433 N.J. Super. 44, 48 (App. Div. 2013). We are particularly deferential when there is no jury to be prejudiced by the improper admission of evidence. See In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202-03 (App. Div. 2004).
Additionally, what occurred at the municipal court trial was absolutely relevant, not as evidence of defendant's prior wrong-doing, but as to his motive to throw rocks at the municipal judge's law office. N.J.R.E. 404(b). The trial judge himself found the handwriting on the rocks to be similar to the exemplar provided by defendant. Expert testimony is not needed for handwriting comparisons. N.J.S.A. 2A:82-1; State v. Carroll, 256 N.J. Super. 575, 594 (App. Div. 1992). Defendant's misspelling of the word "evil" was particularly telling. Testimony that other court employees or officers directed the detective to defendant as a possible suspect did not prejudice the trial judge in his fact-finding. Thus none of the issues raised by defendant call into question the convictions.
We are deeply concerned, however, regarding the sentence imposed. Defendant was initially indicted in Hudson County for fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1), fourth-degree retaliation for past official action, N.J.S.A. 2C:27-5, and third-degree terroristic threats, N.J.S.A. 2C:12-3(b). Defendant's motion for a change of venue was granted, and the case was transferred to Essex County, where the prosecutor downgraded the charges to one disorderly persons offense and one petty disorderly persons offense.
The day before the bench trial began, both counsel and defendant appeared before the Essex County judge to place the reduction of the charges on the record. The judge stated on the record his understanding that defendant was charged with "writing several harassing or alarming messages on the rocks that he threw through the window of a law office." After an off-the-record, in-chambers conference with counsel, the judge addressed defendant directly, seeming to offer him a noncustodial sentence if he accepted the State's offer to dismiss all open charges if he pled guilty to criminal mischief.
THE COURT: The prosecutor tells me if you enter a plea of guilty to criminal mischief, that will be the end of it, and they'll also dismiss the assault charges pending against you in the Hudson County Prosecutor's
Office. It seems to me that's a reasonable resolution that would be most beneficial to you under the circumstances. Are you willing to do it?
THE DEFENDANT: Plead guilty?
THE COURT: To criminal mischief. It's a resolution that's going to benefit you and everybody.
THE DEFENDANT: Plead guilty?
THE COURT: It seems to me you're getting one dismissed and the other dismissed. You can't be hard headed about this. You've got to use your head.
[DEFENSE COUNSEL]: Judge, can I clarify? When the Judge talks about the charge being dismissed --
THE COURT: Things happen in life where people get angry. They get angry. They do stupid things. You can't excuse the behavior, but you can understand it. Even if I understand your behavior, I can't excuse you from it. You should understand that as an adult. You've been in this court for a long time. They've come to this resolution. I think it's something you should accept --
THE DEFENDANT: I can't go on with the trial, though?
THE COURT: You can go on with the trial, but I don't think you should do that.
THE DEFENDANT: I'd like to.
THE COURT: You'd like to? All right. Did you ever spend any time in custody?
THE DEFENDANT: I did time already.
THE COURT: For what?
THE DEFENDANT: For the rock.
THE COURT: How much time did you do?
THE DEFENDANT: Thirty-two days.
THE COURT: Before you made bail?
THE DEFENDANT: Yes.
THE COURT: Even if you get sentenced to time served plus a fine, you won't do it?
THE DEFENDANT: I didn't throw no brick through the window.
THE COURT: That's fine. Why should I think his attitude would be different in Essex County rather than Hudson [C]ounty?
No pending assault charge is reflected on defendant's presentence report.
Although defendant reported spending thirty-two days in jail, the presentence report and JOC recorded jail credit of thirty-five days.
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Although offering defendant a sentence of time-served if he pled guilty, after a one-day bench trial the judge sentenced defendant to the maximum possible sentence for the disorderly persons offense: six months in jail. Pursuant to Rule 7:9-1, the judge properly considered the aggravating and mitigating factors when sentencing defendant on the disorderly persons and petty disorderly persons offenses. The judge found one mitigating factor: N.J.S.A. 2C:44-1(b)(7), that defendant has no prior criminal history.
The judge found aggravating factors N.J.S.A. 2C:44-1(a)(2), the gravity and seriousness of the harm inflicted on the victim, who he found to be both the municipal court judge and the criminal justice system on the municipal court level. The judge also found aggravating factor N.J.S.A. 2C:44-1(a)(8), that defendant committed the offense because the victim was a public servant, as a municipal court judge; thus finding two aggravating factors based on the status of the victim. The judge also found, in spite of defendant's lack of a prior record at the age of forty-seven, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law.
Defendant argues that it was improper for the judge to penalize him with a harsher sentence because he went to trial. We agree with defendant that the sentence was unduly harsh and that it appears from the record that the judge may well have penalized him for proceeding to trial, contrary to N.J.S.A. 2C:44-1(c)(1). Prior to trial, after reviewing the underlying factual allegations, the trial judge offered to spare defendant further time in jail if he pled guilty to criminal mischief. When defendant turned down the offer, the judge complained on the record about defendant's "attitude."
To dispose of this matter expeditiously, and in light of the length of time defendant has had these charges hanging over his head, we exercise original jurisdiction to "eliminate unnecessary further litigation[.]" State v. Micelli, 215 N.J. 284, 293 (2013) (internal citation and internal quotation marks omitted); R. 2:10-5. We sentence defendant to the mandatory minimum financial penalties on both charges. On the disorderly persons offense of criminal mischief, defendant is sentenced to thirty-five days in jail, substantially for the reasons expressed on the record by the trial judge when articulating his willingness to so sentence defendant the day before trial.
Defendant has no other criminal involvement and left school in the tenth grade. He is not well-educated nor well-to-do, yet has managed to lead a law-abiding life for forty-seven years until this incident. We thus find mitigating factor N.J.S.A. 2C:44-1(b)(7) applies, as did the trial judge. We also find, in accord with the trial judge, aggravating factor N.J.S.A. 2C:44-1(a)(8) applicable, that defendant "committed the offense because of the status of the victim as a public servant[.]"
We sentence defendant on the petty disorderly persons offense of harassment to a concurrent term of thirty days in jail. Defendant is given credit for the thirty-five days in jail he has already served.
We remand to the trial court for entry of an amended JOC in conformity with this opinion. 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