STATE OF NEW JERSEY v. DIANA RODRIGUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1408-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIANA RODRIGUEZ DAVIS,

Defendant-Appellant.

________________________________________________________________

 

Argued November 1, 2006 - Decided November 28, 2006

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. BMA-003-03-05.

Monica Y. Cho argued the cause for

appellant (Ortiz, Paster & Campos,

attorneys; Wilfredo J. Ortiz, II, on

the brief).

Nicole L. Eiszner, Assistant Prosecutor,

argued the cause for respondent (John

L. Molinelli, Bergen County Prosecutor,

attorney; Annmarie Cozzi, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Diana Rodriguez Davis was driving in Hackensack, with Carmen Acosta and Ms. Acosta's children as passengers, when an altercation occurred with Azizi Posligua, who was driving another vehicle at the time. Posligua charged Davis and Acosta with simple assault, N.J.S.A. 2C:12-1(a)(1), and criminal mischief, N.J.S.A. 2C:17-3, and the police charged Davis with failing to signal when turning, a motor vehicle violation that allegedly occurred before the altercation. Precisely who provoked the altercation and whether Posligua was assaulted by defendant and Acosta was sharply contested. However, Hackensack Municipal Court Judge Dinice found defendant and Acosta guilty of both charges, imposed appropriate penalties, and also found defendant guilty of the motor vehicle violation. Only defendant Davis appealed to the Law Division, and Judge Gaeta, in a trial de novo on the municipal court record, also found her guilty of the disorderly person charges and the motor vehicle violation. She has further appealed to this court.

On appeal, defendant argues that (1) insufficient credible evidence supports Judge Gaeta's findings; (2) the judge erroneously failed to hold the State to the criminal burden of proof beyond a reasonable doubt, (3) improperly admitted defendant's prior convictions, and (4) erroneously failed to require recusal from hearing the motor vehicle violation. We reject these four arguments and affirm.

The first two of defendant's four arguments on appeal essentially challenge the municipal court judge's and the Law Division judge's credibility findings. As an appellate court, however, we are bound by these findings. State v. Locurto, 157 N.J. 463, 474 (1999).

Judge Gaeta found that Ms. Posligua's testimony was more credible than defendant's. He found specifically "that the defendants [were the aggressors and] attempted to cause bodily injury to Ms. Posligua. . . . that the defendants were cursing and yelling at the victim, that they got out of their car, they explicitly threatened the victim, and exhibited an intent to fight." In addition, the judge found defendants punched Ms. Posligua, "and did, in fact, cause the harm they intended, as evidenced by her bleeding nose and referral to an ear, nose, and throat physician." The judge further found that defendants "knowingly and willingly damaged the victim's vehicle when they kicked and punched it. The extent of the damage reflects that the defendants were aware of the consequences of their actions."

Judge Gaeta's findings were independently derived, though they were generally consistent with the municipal court. The Law Division judge was well aware of his responsibility to provide a trial de novo on the record developed in municipal court. See State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The testimony presented by Ms. Posligua, which both Judge Gaeta and Judge Dinice found credible, provided ample support for Judge Gaeta's findings beyond a reasonable doubt. Locurto, supra, 157 N.J. at 474.

Defendant also contends that the Law Division "improperly admitted the testimony related to Ms. Davis' prior convictions." However, Ms. Davis disclosed that she had "five felonies," including convictions for "burglary, theft, CDS." Ms. Acosta did not object to the admissibility of these convictions. Defendant's counsel merely questioned whether defendant's convictions were "relevant." Although the municipal court judge never ruled on this objection, the convictions were clearly relevant for credibility purposes. N.J.R.E. 609. It was defendant's burden to justify the exclusion of this evidence, State v. Sands, 76 N.J. 127, 145 (1978), and in this case, defendant failed to carry that burden. Though defendant claimed to have changed after her convictions, both judges could properly consider defendant's criminal record in evaluating her credibility. Id. at 144-45.

Finally, defendant claims that the "trial judge should have recused himself [from hearing the motor vehicle charge] due to the potential for bias given its prior dealing with Ms. Davis." Defendant cites as support for this proposition only R. 1:12-1(f). We agree with Judge Gaeta, however, that there was no reason for the municipal court judge to recuse himself in this matter, and the court properly considered the criminal charges along with the motor vehicle charge.

After reviewing the record in light of defendant's arguments and the pertinent law, we affirm substantially for the reasons stated by Judge Gaeta in his September 29, 2005, comprehensive and well researched written decision.

Affirmed.

 

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A-Error! Reference source not found.

November 28, 2006