STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH AND WILDLIFE v. JOHN STANZIONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2132-04T52132-04T5

STATE OF NEW JERSEY, DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

DIVISION OF FISH AND WILDLIFE,

Plaintiff-Respondent,

v.

JOHN J. STANZIONE,

Defendant-Appellant.

__________________________________

 

Argued January 17, 2006 - Decided February 6, 2006

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Cumberland County, Docket No. 19-04.

Michael J. Fioretti argued the cause for appellant

(Chance & McCann, attorneys; Kevin P. McCann, of counsel, and Mr. Fioretti, on the brief).

Jung W. Kim, Deputy Attorney General, argued the

cause for respondent (Peter C. Harvey, Attorney

General of New Jersey, attorney; Patrick De Almeida,

Assistant Attorney General, of counsel; Ms. Kim,

on the brief).

PER CURIAM

Defendant, John J. Stanzione, was found liable in the municipal court for causing injury to the property of another while hunting, N.J.S.A. 23:7-3, and not liable for the careless discharge of a firearm, N.J.S.A. 23:9A-2. On cross-appeals to the Law Division, Rule 7:13-1, defendant was again found liable for a violation of N.J.S.A. 23:7-3 after a trial de novo on the record. R. 3:23-1; R. 3:23-8(a). He was fined $2,000, and his hunting license was suspended for five years. Defendant now appeals, claiming insufficiency of the evidence. We affirm.

On December 2, 2003, at around 7:30 a.m., Frank Manno was operating his pickup truck eastbound on Lebanon Road, Deerfield Township, when he noticed a deer crossing the road in a southerly direction, heading across an open field towards a wooded area. After the deer crossed the road, Manno heard a loud noise and felt glass hit his face. He braked and pulled off to the right onto a grassy area, at which time he noticed a hole in the passenger side of his windshield and shattered glass. As later determined, the hole was caused by a bullet that lodged in the driver's headrest.

While stopped, he was first approached by Angelo Manero, who came from the northbound side of Lebanon Road. He was then approached by six to eight hunters, including defendant. All the hunters were using muzzleloader rifles as this was the first day of "black powder season." Defendant approached Manno and stated: "I shot at the deer while it was running across the field. And the bullet must have ricocheted and hit your truck." He apologized, and he offered to pay for the truck repairs. Later that day, at police barracks, after defendant was given Miranda warnings, he explained that he believed he fired parallel to the roadway, that his "shot sideways toward wooded area" was aimed at a deer while it was heading east, and that the bullet was then deflected and hit Manno's truck. Two weeks later, defendant paid for the repairs.

The only other shot fired at the time was from another hunter, Paul Musso. According to Musso, just before Manno turned into Lebanon Road, Minaro had driven three deer out of the woods on the north side of Lebanon Road. Two of the deer headed towards the woods on the south side of Lebanon Road; when the deer were almost there, Musso fired a shot away from the road into the woods to chase the deer into the woods. The third deer turned southeast on a slant toward defendant, who was located east of Musso. When the deer was approximately twenty-five yards away from defendant, defendant shot at the deer, but missed.

Several hours later, Conservation Officers Scott Risher and Douglas Ely returned to the scene with defendant and Manno, who advised of their respective locations at the time of the incident. About sixty-four feet from where defendant had taken his shot, Ely located a sabot, the plastic cup that surrounds the projectile in a muzzleloader barrel and shoots out with the projectile along its flight path. Based on the proximate locations of Manno's car when struck, of defendant when firing his rifle, and of the sabot, Risher concluded that the three points lined up with the direction of the slug through the windshield into the headrest, with the shooter approximately 300 yards from the truck. As a result of this finding, the Division of Fish and Wildlife (Division) of the New Jersey Department of Environmental Protection (DEP) issued defendant a complaint and summons for two civil penalty violations, careless hunting, N.J.S.A. 23:9A-2, and property damage while hunting, N.J.S.A. 23:7-3, the latter charging a per se violation not requiring intent.

At trial, the State and defendant presented two competing theories of the bullet's trajectory. The State's proofs demonstrated that the bullet was capable of traveling 300 yards from where defendant was standing into Manno's windshield. The State's ballistics expert, James Joyce, established that the retrieved sabot, which was in the line of trajectory, could have come from defendant's muzzleloader, based on the rifling impressions of both materials. The sabot, however, could not be conclusively linked to the muzzleloader because the striations on the plastic shell casing were not clear enough. Based on the physical characteristics of the slug recovered from Manno's headrest, Joyce confirmed that nothing on the bullet was consistent with a ricochet. Joyce performed laser test fires on the same type bullet - a .44 jacketed hollow point bullet - with a target at twenty-five feet away and determined that a mere 0.4 degree angle deviation of the rifle barrel would cause the bullet to miss the target by seven inches and travel 300 yards - the distance between defendant and Manno's truck.

Defendant, on the other hand, sought to establish an alternate trajectory along which he shot and, alternatively, that the bullet could not have traveled the 300-yard distance. His testimony was consistent with his original statement that he thought the bullet ricocheted because he was aiming toward the hedgerow at a deer about twenty-five yards away. This was corroborated not only by Musso, who saw defendant shoot towards the hedgerow, by also by Minaro, who said defendant fired parallel to the woods, towards the hedgerow. Defendant's firearms expert, Anthony Giglio, opined there would not be enough energy for the bullet to travel 300 yards and strike a car, five feet high on the windshield, although he never test-fired a weapon to determine distances a bullet may travel at different angles. Barry Jones, a land surveyor, estimated the bullet would have traveled only 177 feet assuming it traveled in a straight line and did not lose either elevation or velocity. But even Jones acknowledged that a 1.31 degree difference in angle inclination upward from a horizontal would cause the shot to travel to the road. Neither Jones nor Giglio were ballistics experts.

Crediting the State's proofs, the municipal court judge found defendant violated N.J.S.A. 23:7-3, causing damage to property while hunting, and dismissed the careless discharge charge. On cross-appeals to the Law Division, after a trial de novo on the record, Judge Geiger found defendant liable under N.J.S.A. 23:7-3, "firmly convinced that defendant . . . was the shooter and that his bullet caused significant damage to the vehicle of Frank Manno." Specifically, Judge Geiger found that, based on the location of defendant, Manno's truck, and the recovered sabot, the direction of the shot was as determined by Risher. He also credited the State's ballistics expert testimony "that a .44 degree error in aiming that rifle in terms of inclination -- in other words, it's aimed up .44 degrees, less than half a degree up in error, that's enough for this bullet to go 300 yards . . . . [and that] it's not very much of an inclination error to miss by .44 degrees or even by 1.31 degrees," which the defense witness himself suggested could cause the bullet to reach the road. On the other hand, Judge Geiger discredited the defense testimony:

The Court reiterates that it does not find the testimony of the defense witnesses as to the direction that defendant was aiming his gun to be credible or believable given their respective positions in relation to the defendant. Defense witness Phillip Musso was approximately 225 feet from defendant's location when defendant shot. Defense witness Angelo Minaro, Jr. was approximately 800 feet from defendant's location when he shot. Given those distances and the perspectives that they had, respectively, their testimony that the defendant was not shooting in the direction of Mr. Manno's vehicle was simply not believable or credible, particularly given their admitted friendship to the defendant.

The standard of review of a trial de novo is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record" as a whole. State v. Johnson, 42 N.J. 146, 162 (1964); see also In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579 (1990); State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005); State v. Spano, 328 N.J. Super. 287, 290-91 (App. Div. 2000). Furthermore, "the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues." State v. Locurto, 157 N.J. 463, 474 (1999). Concurrent findings of fact and credibility should be disturbed only where the court finds "a very obvious and exceptional showing of error." Ibid.; Ebert, supra, 377 N.J. Super. at 8.

We are satisfied that there is sufficient credible evidence in the record to support the finding that defendant, while hunting, caused damage to Manno's truck in violation of the civil penalty statute, N.J.S.A. 23:7-3. See Dep't of Conservation & Econ. Dev., Div. of Fish & Game v. Scipio, 88 N.J. Super. 315, 322 (App. Div.), certif. denied, 45 N.J. 598
(1965). Accordingly, we affirm substantially for the reasons stated by Judge Geiger in his oral opinion of December 10, 2004, and in his written supplemental opinion of December 14, 2004.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-2132-04T5

February 6, 2006