STATE OF NEW JERSEY v. MICHAEL A. POLITO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5581-04T35581-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. POLITO,

Defendant-Appellant.

_________________________________

 

Argued June 14, 2006 - Decided June 30, 2006

Before Judges Wefing and Coburn.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

No. MA-05-006.

David P. Kendall argued the cause for

appellant (Francis T. Giuliano, attorney;

Mr. Giuliano, of counsel; Mr. Kendall, on the brief).

Patricia Quelch argued the cause

for respondent (Luis A. Valentin, Monmouth

County Prosecutor, attorney; Mark P. Stalford,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant was convicted of the disorderly persons offenses of resisting arrest, N.J.S.A. 2C:29-2(a) and simple assault, N.J.S.A. 2C:12-1(a). Appropriate fines and penalties were assessed. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm, but remand for entry of an amended judgment of conviction.

On December 31, 2003, Gregory Cardew threw a party at the Wild Rover Club in Red Bank; the price of admission was forty dollars per person. Cardew estimated that between ninety and one hundred people were in attendance. We infer from the age of the witnesses that the bulk of those attending were in their mid-twenties. At some point, a dispute broke out, and Cardew went to investigate what was happening. Cardew testified he had no recollection of what occurred thereafter until he awoke in the hospital. Cardew said when he woke up in the hospital he had "bruises all over [his] face [and his] nose was on [his] cheek."

Daniel Falvey testified that he is a close friend of Cardew's. He was tending bar at the party when he heard about a disturbance of some sort. He went to investigate and came upon defendant who was visibly intoxicated. Cardew arrived a few moments later. Falvey testified that defendant and several of his friends were moving towards the door, and Cardew got between defendant and the door. Falvey said that defendant took a swing and punched Cardew, knocking him down and breaking his nose. A melee then broke out, and the police responded to restore order.

Falvey identified defendant to the police, who placed him under arrest. According to Police Investigator Michael Frazee, defendant was highly intoxicated and insisted he was not going to jail. According to Frazee, it required four officers to place defendant in handcuffs. Frazee testified that defendant made no complaint about being assaulted himself, and he could observe no visible injuries on defendant. Frazee admitted that no one else was arrested that evening; he said that by the time the police arrived, the crowd was doing no more than standing around shouting and yelling at one another.

Jason Venson testified for the defense. He said that he and defendant and a group of their friends arrived at the clubhouse between 10:00 and 10:30 p.m. and paid their money to enter the party. He said that shortly after midnight, he was alerted to something happening outside in the parking lot. He went outside and saw defendant surrounded by six to seven men who were standing in a circle. Venson testified that Cardew and Falvey were in the group. He said someone, he was unable to say who, punched defendant, knocking him to the ground. The others then attacked defendant, and Venson said he tried to get people off defendant. The police arrived. He also said he saw no sign that Cardew had been injured at all.

Defendant testified as well. He said that a dispute had erupted near the men's restroom involving several of his friends. The girlfriend of one of his friends became sick to her stomach and needed to enter the bathroom. The line for the ladies' room was long and her escort took her to use the men's room. A man waiting to use the facility himself objected, and an argument developed. Defendant testified he went over to smooth things down. He said he then headed toward the door, intending to call his parents on his cell phone to wish them a happy new year. As he reached the door, he was struck on the head from behind. He said he was dragged outside and attacked by a group of people and that shards of glass were later removed from his head at the hospital. Defendant said his father took him to the hospital when he was released on bail the next day. His right knee was immobilized in a brace, and he was given a pair of crutches to use.

On appeal, defendant raises the following arguments.

POINT I THE SUPERIOR COURT, LAW DIVISION, DID NOT CONDUCT A TRIAL DE NOVO AS REQUIRED BY R. 3:23-8 BUT, INSTEAD, SIMPLY ENDORSED THE MUNICIPAL COURT'S FINDINGS OF GUILT

POINT II THE STATE'S LONE EYEWITNESS TO THE ALLEGED SIMPLE ASSAULT WAS BIASED, NOT CREDIBLE AND NOT WORTHY OF BELIEF. ACCORDINGLY, THE STATE FAILED TO PROVE THAT DEFENDANT ACTUALLY COMMITTED A SIMPLE ASSAULT AGAINST CARDEW

Falvey's Direct Motive

Falvey's Bias

POINT III THE STATE FAILED TO PROVE THAT MICHAEL POLITO FORMED THE REQUISITE MENTAL STATE OF "PURPOSEFULNESS" NECESSARY TO SUSTAIN A CONVICTION OF RESISTING ARREST UNDER N.J.S.A. 2C:29-2a

Michael's Intoxication

Michael's Concussion

We reject these contentions and affirm. The Law Division judge made detailed findings, citing to the transcript sections upon which he relied. He gave due deference to the credibility assessment of the municipal court judge. State v. Johnson, 42 N.J. 146 (1964). The findings made by the Law Division judge find support within the record, and we may not disregard that. State v. Locurto, 157 N.J. 463 (1999).

Defendant's challenge to his conviction for resisting arrest does not warrant discussion in a written opinion for it would have no precedential value. R. 2:11-3(e)(2).

We note for the future guidance of the Law Division judge that the procedure of placing his decision upon the record at a later point after argument resulted in his imposing a sentence upon the defendant without the defendant being present. R. 3:23-8; R. 3:21-4(b). Defendant makes no complaint in that regard, however.

Finally, the judgment of conviction entered by the Law Division judge provides that defendant is guilty of simple assault but refers to N.J.S.A. 2C:12-1(b)(1), rather than N.J.S.A. 2C:12-1(a). A corrected judgment should be entered

Affirmed and remanded.

 

(continued)

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A-5581-04T3

June 30, 2006