STATE OF NEW JERSEY v. YOUNG MAN PARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5729-06T45729-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YOUNG MAN PARK,

Defendant-Appellant.

_______________________________

 

Submitted July 15, 2008 - Decided

Before Judges C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Municipal Appeal No. 009-04-07.

Kimm Law Firm, attorneys for appellant

(Michael S. Kimm, on the brief).

John L. Molinelli, Bergen County

Prosecutor, attorney for respondent

(Yomara Castro, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Young Man Park appeals from a judgment of conviction for simple assault, N.J.S.A. 2C:12-1a(1), entered by the Law Division on de novo review of a judgment entered by the Municipal Court of Hackensack. The assault took place during services in a church in Old Tappan on August 27, 2003.

On appeal from the Law Division, defendant contends that the evidence is inadequate to support his conviction. He also claims the court erred in denying his pretrial motions to suppress an audiotape of the incident, which was recorded by a member of the congregation, dismiss the complaint for violation of his discovery rights, and dismiss the complaint based on denial of his right to a speedy trial. We affirm.

The complaint charging defendant with simple assault was filed on August 27, 2003 by a police officer who witnessed the incident. On October 14, 2004, defendant pled guilty to that charge. On March 11, 2005, defendant moved to vacate his guilty plea. The motion was denied on May 5, 2005. Subsequently, defendant moved to disqualify the judge. That motion was granted, and defendant filed a second motion to vacate the plea before Judge Roy F. McGeady, the presiding judge of the municipal courts in Bergen County. The motion was scheduled for December 2, 2005, but defendant did not appear and the motion was dismissed. Nonetheless, Judge McGeady heard the motion and vacated defendant's guilty plea on May 5, 2006.

The case was scheduled for trial on July 7, 2006, but defense counsel moved for an adjournment until mid-September. For that reason, trial was scheduled for October 20, 2006.

On the day of trial, defendant moved to suppress the audiotape and dismiss the complaint based on the State's failure to provide the audiotape in discovery. Both motions were denied, and trial commenced. Trial resumed and was completed on December 22, 2006. On January 5, 2007, Judge McGeady found defendant guilty and imposed a $500 fine, $33 court costs, a $50 VCCB assessment, and a $75 SNSF assessment.

Defendant filed a timely notice of appeal in the Law Division, and the matter was heard by Judge Lipton on June 13, 2007. Judge Lipton also found defendant guilty and imposed the same fines, costs and assessments.

The following evidence was presented at trial. As a result of disputes and increasing tension between members of the congregation of defendant's church, officers of the Old Tappan Police Department were assigned to the church on Sunday mornings. On August 27, 2003, Sergeant Butler watched the services from the entrance way. Protestors, who were holding signs, angrily shouted at the pastor. As the church choir walked down the aisle, Butler saw defendant lunge from his pew, swing his arm and strike Eun Ho Sheen. The woman fell to the floor. Butler had not seen anyone do anything that would have provoked or threatened defendant. Two members of the congregation testified on defendant's behalf; they did not see defendant push Mrs. Sheen. They described a confrontation between defendant and the pastor that led to a scuffle in the center aisle, during which Mrs. Sheen fell after tripping or bumping into a pew.

According to Mrs. Sheen, defendant looked at her and pushed her. After she fell, she had pain in her head and back and bruises on her arm and shoulder.

The Law Division's finding of guilt is supported by sufficient credible evidence in the record as a whole and not clearly mistaken. State v. Johnson, 42 N.J. 146, 162 (1964). Accordingly, there is no reason for this court to disturb the judge's determination.

Defendant is not entitled to relief based on delay between the filing of the complaint and his conviction. The judge balanced the factors relevant to defendant's speedy trial claim in light of the circumstances and arrived at a just conclusion that is not clearly erroneous. State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). As the procedural history of this case indicates, the most significant portion of the delay was attributable to defendant, not the State.

Defendant also fails to establish grounds for relief based on the denial of his pretrial motions.

The audiotape was not used at trial. For that reason, his claim based on failure to suppress that tape is moot.

The trial court properly denied defendant's motion to dismiss the complaint due to an alleged violation of the constitutional right to discovery recognized in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Defense counsel acknowledged that the State had given him the formal written statement of the witness who recorded the church service. Appended to the witness's statement was a document that the witness described as a "transcript" of the tape. Under these circumstances, there is no basis for a finding that the State violated Brady by failing to provide the tape itself. The pertinent information was provided, and defendant did not ask for the tape. Even if there were a Brady violation, dismissal of a complaint or indictment is not always the appropriate remedy. If the material can be provided in time to permit the defendant to make effective use of the evidence, then the violation should be addressed in that manner. See United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983), cert. denied, 464 U.S. 1048, 104 S. Ct. 725, 79 L. Ed. 2d 185 (1984); State v. Scherzer, 301 N.J. Super. 363, 432-33 (App. Div.), certif. denied, 151 N.J. 466 (1997). Despite a two-month gap between the first and second trial dates, defendant did not request that relief.

Affirmed.

 

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A-5729-06T4

July 28, 2008