STATE OF NEW JERSEY v. JOSEPH DESANTIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3006-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH DESANTIS,

Defendant-Appellant.

___________________________________________________

 

Argued December 14, 2005 - Decided February 7, 2006

Before Judges Conley and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

Docket No. 35-04.

Francis Rodman Rupp argued the cause for

appellant.

Thomas Cannavo, Assistant Ocean County Prosecutor,

argued the cause for respondent (Thomas F. Kelaher,

Ocean County Prosecutor, attorney; Mr. Cannavo

on the brief).

PER CURIAM

Defendant Joseph DeSantis appeals from his conviction after trial de novo in the Law Division of simple assault, N.J.S.A. 2C:12-1a(1), and obstruction of justice, N.J.S.A. 2C:29-1a. A two-year term of probation and a fine of $200 was imposed on the obstruction conviction, and a fine of $200 and one weekend in jail was imposed on the assault conviction. Appropriate penalties and assessments were also imposed.

The Law Division judge relied on the transcript of the trial in the Dover Township Municipal Court on August 19, 2004, as well as a videotape depicting a part of the events that led to defendant's convictions. The facts gleaned from those records are as follows.

On June 1, 2004, at about 6:45 p.m., Dover Township Police Officers Mayer, Patrick and Little went to 1335 Apple Blossom Court, Dover Township, in response to a 911 call made by Barbara DeSantis, as well as a prior 911 call made by defendant. Officer Mayer, the first to respond, found defendant standing at the curb in front of the house and Barbara by the front of the residence. Defendant informed the officer that Barbara was at the house, the former marital residence, in violation of a court order that only permitted her access to the house with a realtor. Although Barbara claimed that she had been there with a realtor and a locksmith, they had left before the 911 calls were made. Mayer told defendant several times to remain at the curb, in an effort to keep him and Barbara separated. Detective Patrick went to speak with Barbara when he arrived. Defendant told Mayer that there was an ongoing oral dispute over who could be in the house, and he claimed that Barbara was not supposed to be at the house and should be arrested for burglary for entering in violation of the court order. Mayer testified that after requesting that defendant remain at the curb, he began to walk toward Lieutenant Little, who had also arrived and was standing about forty feet away. At that point, defendant "bolted toward the front door, in "a sprint." Little told defendant to stop. Little, Patrick and Mayer, as well as Barbara, all ran toward the front door. Barbara arrived first and Mayer heard her scream that defendant was "closing the door on her." The officers pushed open the door and placed defendant under arrest.

Little testified that after arriving, he went over to Barbara who was "walking around the property" with a video camera. After speaking with her for a short while, he saw defendant run toward the front door, about forty to fifty feet from where he was standing. Little yelled, "stop, where are you going?" to defendant, who looked at him and laughed. Thinking that defendant would barricade himself in the house, Little ran toward the door. Little testified that defendant attempted to push the door closed on Barbara. Little forced the door open and arrested defendant.

The incident in question had earlier been the subject of a domestic violence complaint by Barbara, in which she alleged an act of assault by defendant on June 1, 2004. The witnesses at that hearing on June 8 were Barbara, Mayer and defendant. At the criminal trial in the Municipal Court, defendant who was appearing pro se, confronted Mayer with his testimony at the domestic violence hearing in which he conceded telling defendant, in response to an inquiry about Mayer's authority to keep him from the house, "I'm not physically restraining you

. . . from the house." It was at that point, according to Mayer, that defendant started walking toward the house, breaking into a run about halfway to the front door.

Barbara testified in the Municipal Court that while she was talking with one of the officers, she saw defendant start moving slowly, "inching" toward the front door and then "dart to the front door." She "heard an officer say stop." She also ran to the door, trying to keep defendant from shutting the door and locking himself in. Defendant grabbed her left arm and pushed her out the door, shutting the door on her. Barbara exhibited a photo of her left arm, taken on June 2, showing a bruise above the biceps. The bruise did not appear for about twenty-four hours and was not visible to the police on the evening of

June 1.

Defendant testified that when Mayer said, "I'm not going to physically restrain you," he understood it to mean that he was permitted to go to the house. As a result, he walked, rather than ran, to the door. None of the officers told him to stop, and defendant did not believe he was disobeying any order. Defendant went through the front door and when he went to shut the door, "Barbara came and pushed on the door. And, while she pushed on the door, she put her leg in and her arm in . . . between the door and the door jamb." According to defendant, Barbara tried to forcibly stop him from shutting the door, "she put her hand out to stop." Defendant testified that Barbara bruises easily and suggested that the bruise on her arm shown in the photographic exhibit was self-inflicted after June 1.

The Law Division judge correctly noted the standard that required him to consider the matter anew, making his own assessment of the record made in the municipal court and giving due, "although not necessarily controlling, regard to the opportunity of the municipal court judge to judge the credibility of the witnesses." State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983); see In re Phillips, 117 N.J. 567, 578-79 (1990). The judge continued to find the following critical facts:

Shortly after Lieutenant Little's arrival the defendant began walking towards the front door of the property which was situated approximately 60 feet from the edge of the curb where defendant was originally located. According to his own testimony, defendant ran the last 20 feet towards the door of the house. Mrs. DeSantis observed the defendant walking towards the front door of the home and took off after him. When defendant arrived at the door he attempted to close the door while Mrs. DeSantis was trying to prevent him from closing the door. As a result, the defendant closed the door on her and attempted to push her out of the doorway.

The judge then concluded that defendant had committed a simple assault on Barbara, finding that:

In the present case the defendant closed the door on Mrs. DeSantis and pushed her, intending to keep her out of the house; not necessarily intended to injure her. However, the Court will find that in light of the circumstances his conduct was reckless. The defendant closed the door on Mrs. DeSantis and pushed her with the knowledge that some type of bodily injury could result.

Further, the defendant consciously disregarded the potential injury that Mrs. DeSantis could have sustained as a result of closing the door on her and pushing her. Mrs. DeSantis did, in fact, suffer physical pain as well as a bruise as a result of the assault. As such, the defendant recklessly caused bodily injury to Mrs. DeSantis.

Concerning the obstruction charge, the judge made the following pertinent observations and conclusion:

Upon review of the tape and the record it appears as though the defendant began walking, not running or bolting towards the front of the house, almost simultaneously when Officer Mayer began walking towards Mrs. DeSantis and the other officers. Although both officers testified that defendant took off running, the Court finds contrary in the video. Officer Mayer watched the defendant walk towards the house and testified in the previous Court that he did not tell the defendant to stop. At some point approximately 20 feet in front of the house, defendant testified, he did run the last 20 feet, "a hop, skip, and jump," that's a quote.

However, the Court will further find that Mr. DeSantis was instructed by Officer Mayer to stay by the curb more than once; that Mr. DeSantis knew he should not have left that area or entered the residence with the intent of locking himself in the house in order to retrieve various items within. Mr. DeSantis' failure to comply with Officer Mayer's instructions to stay by the curb and his intentional decision to leave and enter the home obstructed the officers' investigation at the scene.

The Court will, therefore, find the defendant guilty of obstructing the administration of law.

On appeal defendant argues as follows:

POINT I: THERE WAS AN INEFFECTIVE WAIVER OF COUNSEL MANDATING REVERSAL AND REMAND.

POINT II: THE MUNICIPAL COURT JUDGE IMPAIRED THE PRO-SE DEFENDANT'S CONSTITUTIONAL RIGHT TO ATTACK THE CREDIBILITY OF THE STATE'S MAIN WITNESS, THEREBY IMPACTING THE PRO SE DEFENDANT'S CRUCIAL DECISION TO WAIVE THE RIGHT TO REMAIN SILENT AND OTHER TRIAL STRATEGIES. (Not Raised Below)

POINT III: THE CONVICTION FOR SIMPLE ASSAULT MUST BE REVERSED.

POINT IV: THE CONVICTION FOR OBSTRUCTING ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION MUST BE REVERSED.

POINT V: THE INFERIOR MUNICIPAL COURT SHOULD HAVE DEFERRED TO THE FACT FINDINGS OF SUPERIOR COURT JUDGE PETERSON OF THE OCEAN COUNTY FAMILY PART AS TO THE ASSAULT CHARGE.

We agree with defendant's contentions in Points I, III and IV, leading us to reverse and remand for a new trial on both the obstruction and simple assault charges.

I

We have carefully reviewed the transcripts of defendant's several preliminary appearances in the Municipal Court on June 16, 2004, July 22, 2004, and his appearance for trial on August 19, 2004, and find that defendant was not provided with the proper advice and admonitions before being permitted to proceed pro se, as required by State v. Crisafi, 128 N.J. 499, 511-12 (1992). On June 16, defendant was simply told that, "You'd be smart to get a lawyer, but that's up to you, sir." On July 22, the only advice given was a recitation of the three charges filed by the police. On August 19, the trial date, the judge again reviewed the charges as well as their potential penalties. Other than asking defendant if he wished to waive his right to counsel, and receiving an affirmative response, there was no further colloquy on the self-representation issue.

While defendant was an intelligent and well-educated man who had considerable exposure to the courts from the matrimonial litigation with his ex-wife, we disagree with the Law Division judge that defendant effectuated "a knowing and voluntary waiver of counsel." We likewise reject the State's argument on appeal in support of that finding. The record simply does not support the conclusion. Even before Crisafi, in reviewing a de novo disorderly persons conviction, we held that there must be "[a] searching and painstaking inquiry" by the trial judge before a conclusion can be reached that "there has been an intelligent and competent waiver of counsel." State v. Abbandanzo, 201 N.J. Super. 181, 184 (App. Div. 1985). Since the Law Division judge relied upon the municipal court trial record, defendant's convictions based on that record cannot stand. In light of our disposition on this issue, we have no need to address defendant's Point II.

II

Notwithstanding our determination that there must be a new trial, we address defendant's argument concerning the sufficiency of the evidence on the assault charge since we conclude that there was a legal error that may bear upon the retrial. We see no need to address the obstruction conviction.

III

The videotape does not reflect the confrontation at the door which resulted in the assault charge. Thus, the evidence comes only from the witnesses. Indeed, since the precise conduct was not observed by the officers, because of the positioning of the parties, the evidence comes only from Barbara, the alleged victim. The judge found that defendant acted recklessly, N.J.S.A. 2C:12-1a and 2C:2-2(b)3, in closing the door on Barbara and pushing her, causing her to "suffer physical pain, as well as a bruise as a result of the assault." While Barbara clearly placed herself in harm's way, the finding that defendant acted recklessly is supported by the record. Indeed, the record supports a finding that Barbara sustained some physical pain, albeit minor and momentary, as a result of defendant grabbing her left arm. N.J.S.A. 2C:11-1(a); N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). The judge did not refer to the bruise on plaintiff's arm. Although the circumstances of the bruise are suspect, given that it did not appear for twenty-four hours after the incident, the judge's finding was credibility based and not subject to being overturned by us. Locurto, supra, 157 N.J. at 471. We do not find this case governed by State v. Cabana, 315 N.J. Super. 84 (Law. Div. 1997), aff'd, 318 N.J. Super. 259 (App. Div. 1999), as defendant suggests.

However, we note that but for the absence of privity, defendant's assault conviction would be barred by the doctrine of collateral estoppel. Barbara sought a domestic violence restraining order against defendant based on the events of June 1, 2004, alleging simple assault as the predicate act. A hearing was held just a week later, on June 8, 2004, at which Barbara and defendant testified. At the conclusion of that hearing, a Family Part judge found that Barbara had not established the assault by the requisite preponderance of the evidence. Thus, the assault issue in the criminal trial: (1) was identical to the issue decided in the prior Family Court hearing; (2) was actually litigated in the prior proceeding; (3) was the subject of a final judgment on the merits; and (4) was essential to the prior judgment. Matter of Estate of Dawson, 136 N.J. 1, 20 (1994). Here, the prior determination was by a preponderance of evidence standard, a lesser burden than required in the criminal trial. Cf. Kugler v. Banner Pontiac-Buick, Opel, Inc., 120 N.J. Super. 572, 578 (Ch. Div. 1972). Thus, it would necessarily follow from a finding that the preponderance standard was not met, that a finding of guilt beyond a reasonable doubt would be precluded.

However, the fifth requirement for application of collateral estoppel is that "the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding." Dawson, supra, 136 N.J. at 20. Here, the party against whom the ban is asserted in the present proceeding is the State, which was not a party to the Family Court trial. Can it be said, however, that the State was "in privity with" Barbara, a party to the earlier proceeding, and the victim and essential witness in the criminal case? Based on settled law, we believe the answer must be in the negative. See Restatement (Second) Judgments 27-29 (1982); see also Wunschel v. City of Jersey City, 96 N.J. 651, 658 (1984). If we were writing on a clean slate, there is much to commend the applicability of collateral estoppel in these circumstances.

In any event, while collateral estoppel may not be available to defendant as a bar, we see no reason why the court on remand should not consider the findings of the Family Court in the domestic violence proceeding. In that case, Barbara conceded on June 2, less than a day after the incident, that she had suffered no injuries. And even on June 8, Barbara did not produce the photograph of her injury, which she claimed to have taken on the evening of June 2.

Since the case must be returned to the municipal court for a new trial, we conclude that the matter should be heard by a different municipal court judge. In so directing, we do not cast any aspersions on the original judge, but simply note that he has already made fact findings which may impact on his ability to try the case anew. Graziano v. Grant, 326 N.J. Super. 328, 349-50 (App. Div. 1999). At the very least, the perception of justice would be best served by trial before a different trier of fact.

Reversed and remanded for a new trial.

 

Defendant's version was that he asked Mayer, "what if I just walked, went to the house" and Mayer responded, "well, I'm not going to stop you."

In State v. Reddish, 181 N.J. 553, 593 (2004), decided after defendant's municipal court trial, the Court elaborated upon and expanded the Crisafi requirements for an effective waiver of counsel.

(continued)

(continued)

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A-3006-04T5

February 7, 2006