Opinion
DOCKET NO. A-5854-11T3
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BENJAMIN GIUNTA, Defendant-Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys for appellant (Andrew F. Bain, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4969. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys for appellant (Andrew F. Bain, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a trial before the municipal court and a trial de novo in the Law Division, defendant Benjamin Giunta was found guilty of two counts of harassment by alarming conduct, N.J.S.A. 2C:33-4(c). He appeals from the May 29, 2012 judgment of conviction and presents the following arguments:
POINT IAfter careful review of the record, we affirm.
THERE WAS INSUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD TO UPHOLD THE FINDINGS OF THE LAW DIVISION.
POINT II
[THE TRIAL COURT] DID NOT MAKE FINDINGS OF FACT THAT WERE SUFFICIENTLY CLEAR AND COMPLETE TO PERMIT REVIEW.
POINT III
MR. GIUNTA'S LEGAL ASSISTANCE WAS INEFFECTIVE.
I.
Defendant resided in Wanaque and shared a right-of-way with a neighbor, Robert Ferdon. Ferdon testified that defendant "got upset" with him after one of Ferdon's cars became stuck in the loose gravel of the right-of-way and had to be towed. Ferdon claimed defendant cursed and threatened him. When Ferdon made a comment about defendant's mental stability, defendant filled the right-of-way with construction equipment and trash.
The terms "right-of-way" and "easement" are used inter-changeably throughout the record.
Ferdon maintained that he was told by his landlord that he was permitted to park in two spaces near the right-of-way. Defendant testified that Ferdon was parking on the right-of-way and restricting his access to a parcel of property in the rear.
On March 10, 2010, Ferdon filed a complaint charging defendant with harassment, claiming that he placed a metal bedframe and a bottle of antifreeze in the right-of-way and threatened Ferdon that he would "continue to throw things . . . if [Ferdon] didn't get his car out of the way."
On March 22, 2010, defendant filed a harassment complaint against Ferdon alleging that he "keeps parking his little black car by his landlord['s] fence which is part of [an] easement/right of way not a driveway annoy[ing] Benjamin Giunta." On March 23, 2010, Ferdon filed a second harassment complaint against defendant alleging he threw a garbage can causing garbage to be scattered about the driveway.
The municipal court tried all three complaints together. Ferdon and defendant testified. The court found Ferdon not guilty, as the allegation that he parked his car on the right-of-way did not constitute harassment. The court determined that defendant's testimony was not credible and found him guilty of both harassment charges. He was sentenced to fines, costs, and assessments totaling $828.
Defendant appealed and counsel was appointed to represent him. The Law Division conducted a trial de novo. After reviewing the municipal court record and the arguments of counsel, the judge found defendant guilty of both harassment charges and imposed the same sentence as the municipal judge.
II.
In a trial de novo, the Law Division judge must determine the case completely anew based on the record made in the municipal court, giving due regard, although not necessarily controlling weight, to the municipal court judge's opportunity to evaluate the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 159 (1964). The judge must make findings of fact based on the record that was created in the municipal court. State v. Locurto, 157 N.J. 463, 472 (1999). We are obligated to affirm the findings of fact made by the Law Division if those findings "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.
Although we are bound by the Law Division's findings of fact unless those findings are unsupported by the record, we owe no such deference to the Law Division's legal conclusions, which we review de novo. State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010).
Harassment is defined in N.J.S.A. 2C:33-4, which provides in pertinent part:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
. . . .
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
[N.J.S.A. 2C:33-4(c).]
Defendant argues that the evidence was insufficient to support the harassment convictions. Specifically, defendant claims the Law Division judge did not have clear copies of the photographs entered into evidence before the municipal court and therefore her de novo review was flawed. We disagree.
Before the municipal court, six pages of photographs were entered in evidence by Ferdon. The photos marked "S-1" were taken by Ferdon on March 6, 2010, showing garbage on the driveway. "S-2" contained photos taken on March 12, 2010; photos marked "S-3" were taken on March 20; "S-4" was taken on March 22. "S-5" is a drawing of the property prepared by Ferdon to assist the court in understanding its layout. "S-6" contains photos taken on March 24, 2010, depicting wooden pallets placed around Ferdon's car. All of these exhibits were admitted without objection by defendant.
Defendant marked four photographs for identification, but only one was admitted into evidence.
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When the Law Division judge heard oral argument on March 9, 2012, she remarked that she had been provided with copies of the photos that had been admitted into evidence but did not have the originals. At the conclusion of oral argument, the judge mentioned that she could not see clearly what was depicted in the photographs and requested either the original photos or color copies. The matter was adjourned for the court's decision.
After several adjournments, the matter was next heard on May 29, 2012. Before reading her decision into the record, the judge stated that she had "reviewed the transcript of the [trial] that was conducted below, [and] the exhibits that were marked into evidence." In finding defendant guilty of both harassment charges, the judge again indicated that she read the transcripts and reviewed the exhibits:
Now, based upon my reading of the transcripts and the exhibits marked into evidence, I find that on March 7th of 2010, Mr. Giunta did harass Mr. [Ferdon] by throwing items onto the right of way. Namely, parts of a metal bedframe, a container of antifreeze, wood, and a rock -- pieces of wood and a rock.
I also find that on March 12th of 2010, the defendant did harass Mr. [Ferdon] by throwing a full garbage can of trash onto the right of way.
I find that on both of these occasions, the defendant engaged in repeatedly
committed acts with the purpose to seriously annoy Mr. [Ferdon]. Mr. Giunta's purpose was to harass Mr. [Ferdon]. And, in fact, his repeated acts of harassment, caused Mr. Ferdon to move out of 826 Redwood Avenue, even though it meant that he would be moving farther away from his son.
At the outset, we note that the Law Division judge first raised the issue of the clarity of the copies of the exhibits she received on March 9, 2012. It appears that defendant's counsel did not have copies of the photos and the court provided its copies to counsel and the prosecutor. When the court asked defendant's counsel if he wanted to review the photos with defendant, counsel declined and stated that defendant had acknowledged that the photos were "accurate."
The matter was adjourned, at least in part, for the purpose of obtaining the original photos or color copies of same. The judge indicated that she would attempt to obtain the photos and the assistant prosecutor agreed to contact Ferdon to obtain them.
Before the judge read her decision into the record on May 29, 2012, she indicated that she had reviewed the transcripts and the exhibits. Defendant failed to raise the issue of whether the court had obtained either the original exhibits or better copies. Had he done so, the judge could have given him access to the exhibits she relied on. Instead, defendant raises the issue for the first time on appeal.
It is well settled that an appellate court will decline to consider issues not presented below unless the issues raised for the first time on appeal address the jurisdiction of the trial court or concern matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citing Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). We find no jurisdictional or public interest issues implicated in this record.
Further, our review of the Law Division's findings is limited to deciding whether there was adequate evidence before the court to justify its findings of guilt or innocence. Johnson, supra, 42 N.J. at 161. The issue before us is not whether clearer photographs were ever provided to the court, but whether its decision was supported by substantial credible evidence in the record as a whole. See In re Phillips, 117 N.J. 567, 579 (1990). The testimony of Ferdon provided an ample basis for the Law Division to conclude that on March 7 and March 12, 2010, defendant "repeatedly committed acts with the purpose to seriously annoy Mr. [Ferdon]."
Defendant makes conclusory allegations that his counsel was ineffective for failing to acknowledge that he was not provided with the exhibits introduced before the municipal court and for not inquiring whether the Law Division obtained copies of the exhibits. The record indicates that counsel was given the court's copy of the photos and defendant acknowledged their accuracy. Moreover, claims of ineffective assistance of counsel are properly raised in petitions for post-conviction relief rather than on direct appeal. See State v. Hess, 207 N.J. 123, 145 (2011) ("[W]e routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'").
Defendant's argument that the Law Division failed to make adequate findings of fact is not supported by the record. As we previously noted, the judge made credibility determinations and specific findings of fact with respect to defendant's conduct on March 7, 2010, and March 12, 2010, concluding that he harassed Ferdon on both occasions.
Defendant's claim that Ferdon was improperly parking within the right-of-way is without sufficient merit to warrant full discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION