STATE OF NEW JERSEY v. MICHAEL J. DORKHOM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2484-07T42484-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. DORKHOM,

Defendant-Appellant.

_______________________________

 

Submitted: January 30, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2007-025.

Breslin and Breslin, P.A., attorneys for appellant (Kevin C. Corriston, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Michael J. Dorkhom appeals from that portion of a Law Division judgment that affirmed de novo his conviction in municipal court of disorderly conduct in violation of N.J.S.A. 2C:33-2a(2). He asserts on appeal that his actions do not constitute a violation of that statute. We affirm.

During the early morning hours of July 30, 2006, the Cedar Grove Police Department received a 911 call from defendant reporting that he was being detained at gunpoint and that offi cers should approach the home from the back door. Police Offi cer Carolyn Schoenich, Lieutenant Dale Carriker, and three other Cedar Grove police officers responded to 8 Westfield Court and found multiple vehicles in front of the house and many people on the lawn. They called for Mutual Aid police backup and held the people on the front lawn at gunpoint. Schoenich and Carriker met at the back of the house and saw a lot of people in the house as well, but could not tell what was happening. They returned to the front of the house and stood by the front door to await assistance from the Verona, Little Falls, and Montclair police departments.

Before help arrived, they saw someone in the house coming to the front door, so Schoenich and Carriker opened the door with guns drawn and ordered everyone to the ground. When the other officers arrived, they secured the scene and began to frisk everyone, but found no guns on anyone. Schoenich then asked who had called 911 and, after she asked several times, defendant replied that he had done so.

Schoenich separated defendant from the others and they spoke outside. Defendant said that he went to the home of his friend, Paul Sayegh, who resided at 8 Westfield Court. His friend accused him of making threatening phone calls to Sayegh's phone, using a disguised voice. They started to argue and defendant wanted to leave, but Sayegh threw him to ground and put a gun to the back of his neck and would not let him leave. Defendant hit his head when he was thrown to the floor. That was when he called 911. Defendant said that he broke away and ran upstairs to talk to Sayegh's mother.

Defendant at the time had glassy, droopy eyes and he was swaying as he talked to Schoenich; half the time he did not look at her. He also changed his story several times, denying that it happened and then saying it did. When asked to make a formal statement, he refused, saying that it did not happen. He did not want to do anything because he had known Sayegh for years. His speech was very slow, slurred, and he fumbled for words. The police investigation revealed that Sayegh did have a gun in the house. After speaking with Sayegh and then the department's legal advisor, Schoenich and Carriker placed defendant under arrest for being under the influence of a controlled dangerous substance (CDS), creating a false police report, using 911 with out needing its services, and causing a public alarm by stating that there was a crime in progress.

After the officers testified, the judge listened to the 911 tape in which defendant admits that he stated, "Someone with a gun won't let me leave the house." The State then rested, at which point defendant offered into evidence a videotaped state ment Sayegh gave to the police three days after defendant's arrest. The judge did not accept this videotaped statement as testimonial evidence because Sayegh could and should have been subpoenaed to testify, although he considered it as "corroboration" of the testimony given by the police officers.

Two complaints were issued. Complaint No. W-2006-0121 charged defendant with one count of third-degree making a false report of a crime via the 911 system to the Cedar Grove Police Department, in violation of N.J.S.A. 2C:33-3a; and one count of fourth-degree knowingly placing a call to the 911 emergency telephone system without purpose of reporting the need for 911 service, in violation of N.J.S.A. 2C:33-3e. The Essex County Prosecutor administratively downgraded both counts of this complaint to violations of N.J.S.A. 2C:33-2a(2). Complaint No. S-2006-0122 charged defendant with being under the influence of CDS, in violation of N.J.S.A. 2C:35-10b.

The municipal court judge concluded that the State had not proven the CDS charge beyond a reasonable doubt and dismissed it. The judge then found the facts relating to the other com plaint. With respect to the first count charging a violation of N.J.S.A. 2C:33-2a(2), the judge found that defendant reported a crime in progress knowing that the report was false because there was no evidence that the gun Sayegh was licensed to pos sess was ever pointed at defendant. He also found that this false report created great risk of harm and a hazardous condi tion because the officers who responded drew their guns and held people at gunpoint.

With respect to the second count, which had originally charged a violation of N.J.S.A. 2C:33-3e, the judge found that defendant knowingly made a call to the 911 service without purpose or need to make the call, and found defendant guilty on the second count of the complaint. The judge then merged the second count with the first count for sentencing purposes and sentenced defendant to thirty days in jail, which he suspended, and ordered restitution. He also imposed various fines and assess ments. At a restitution hearing on March 6, 2007, the judge concluded that no restitution was due. The sentence was stayed pending appeal.

On de novo review before the Law Division, the judge con sidered the evidence at the municipal court trial. The judge overturned the conviction on the second count for a violation of N.J.S.A. 2C:33-3e. She reasoned that defendant was on medication and that there was a reason for the 911 call, albeit not a rea son with which the State and the court would agree, but a reason nonetheless. However, she sustained the conviction on the first count for violation of N.J.S.A. 2C:33-2a(2) because defendant did cause a public inconvenience. Defendant reminded the judge that both counts were downgraded to petty disorderly persons offenses under N.J.S.A. 2C:33-2a(2), and argued there was clearly only one action and, thus, defendant could only be con victed of one of the two charges. The judge responded, "They would have to merge" and clarified that she was finding defendant guilty of violating only N.J.S.A. 2C:33-2a(2).

In this appeal, defendant contends that his conduct does not support a conviction under N.J.S.A. 2C:33-2a(2) because he did not create "a hazardous or physically dangerous condition by any action which serves no legitimate purpose of the actor" because the Law Division judge concluded that he had a reason for the 911 call requiring dismissal of the N.J.S.A. 2C:33-3e charge. He asserts that the mere fact that the officers testi fied that he changed his story several times is an insufficient basis on which to convict him of the offense charged. He also urges that the evidence does not support a conclusion that he did not believe he had a legitimate purpose for making the 911 call, relying on the statutory definition of "purposeful."

The scope of our appellate review in this case is exceed ingly narrow. See State v. Locurto, 157 N.J. 463, 470 (1999). Municipal court decisions are appealed first to the Law Divi sion. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division conducts a trial de novo on the record developed in the municipal court, pursuant to Rule 3:23-8. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The Law Division judge is bound to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the wit nesses." State v. Johnson, 42 N.J. 146, 157 (1964); Locurto, supra, 157 N.J. at 472-74.

Deference, however, does not mean adherence and the Law Division judge may reach a different result.

But if the appellate tribunal is thor oughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand inter vention and correction, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judi cial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mis take must have been made. This sense of "wrongness" can arise in numerous ways -- from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-valuation of crucial evidence, a clearly unjust result, and many others. This, then, is when and how the per missive power of R.R. 1:5-4(b) should be utilized by the first appellate tribunal and is what our prior cases mean no matter how they have expressed it.

[Johnson, supra, 42 N.J. at 162 (citations omitted).]

For example, in State v. Kane, 335 N.J. Super. 391, 396-97 (App. Div. 2000), we found that the trial court was clearly mistaken in finding that defendant inflicted a serious bodily injury, a conclusion that "was so plainly unwarranted that the interests of justice demand[ed] intervention and correction."

Here, the Law Division judge agreed with the municipal court judge's credibility assessments. Our review is limited to determining whether there is sufficient credible evidence pre sent in the record to support the findings of the Law Division judge, not the municipal judge. Johnson, supra, 42 N.J. at 161-62. Like the Law Division, we are not in a good position to judge credibility and should not make new credibility findings. Locurto, supra, 157 N.J. at 470-71. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471.

Moreover,

[a]lthough the Law Division did not engage in its own credibility determinations sepa rate and apart from the Municipal Court, it described on the record the evidence and testimony presented before the Municipal Court that persuaded it to "accede" to the Municipal Court's credibility determina tions. Appellate courts should defer to the trial courts' credibility findings that are often influenced by matters such as observa tions of the character and demeanor of wit nesses and common human experience that are not transmitted by the record. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Locurto, supra, 157 N.J. at 474 (citations omitted).]

Applying these standards, we find no basis to disturb the findings of the municipal court and Law Division judges. The credible evidence in the record supports, beyond a reasonable doubt, the findings of guilt.

Although defendant urges that we consider Model Jury Charge (Criminal), "False Public Alarms" (1988), applicable to an indictable offense tri able by jury, this charge is not applicable to a violation of N.J.S.A. 2C:33-2a(2), a petty disorderly persons offense tried to a judge. The latter statute provides:

Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] he . . . [c]reates a hazard ous or physically dangerous condition by any act which serves no legitimate pur pose of the actor.

[N.J.S.A. 2C:33-2a(2).]

We considered this petty disorderly offense in State v. Oliver, 320 N.J. Super. 405, 421 (App. Div.), certif. denied, 161 N.J. 332 (1999). There, defendant was found guilty of vio lating N.J.S.A. 2C:33-2a(2) because he went surfboarding in dis regard of red flags posted along the beach indicating that the beach was closed due to Tropical Storm Bertha, which had gener ated high winds and surf along the beachfront. Id. at 410. Lifeguard stands and other equipment had been moved from the beach to prevent damage from the high surf. Ibid. Defendant and three other men were observed in the ocean and, after the police expended considerable effort in attracting their attention, the men returned to the beach. Ibid. Indeed, six police officers spent over an hour attempting to secure compli ance from the surfers by blowing their whistles and waving their arms while the lights on their vehicles flashed. Id. at 412-13. Finally, they asked for assistance from the United States Coast Guard, which then approached the surfers from the sea. Id. at 413. By then, a crowd of 100 people had gathered to watch the spectacle. Ibid. The Coast Guard could hear the police whistle from the shore even though the Coast Guard vessel was twenty yards further out to sea than the surfers. Ibid. A crewman then instructed the surfers to return to the beach and they finally complied. Ibid. The police then charged two of the other surfers with disorderly conduct and other state and municipal offenses not relevant here. Id. at 411.

Oliver, like defendant here, contended that the State had not proven all of the elements of improper behavior under N.J.S.A. 2C:33-2a(2). We rejected that claim, finding as follows:

Defendants entered the water to surf when the beach was closed--the lifeguard stands were down and pulled back nearly off of the beach. More egregiously, despite the hour-long effort of at least six Spring Lake police officers, defendants chose to ignore the officers and remain in the water until the Coast Guard intervened. As a result of remaining in the dangerous surf, defendants created a dangerous condition, or, at the very least, a risk thereof, to themselves and the police and lifeguard personnel who would have been required to save defendants had an emergency arisen. Furthermore, defendants' actions restricted the police's and life-guards' activity for an extended period of time, obstructing their ability to attend to their normal duties.

[Id. at 421-22.]

In this case, defendant conceded that there was a public inconvenience, annoyance or alarm. It is not determinative that he had no purpose to do so. The statute encompasses reckless conduct, which is defined in pertinent part by N.J.S.A. 2C:2-2b(3) as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. . . .

Here, defendant called the 911 service and reported, "Some one with a gun won't let me leave the house." Thereafter, he allowed the police to respond to his call knowing that a sizeable group of people were inside and outside the house. Even when the police entered the house with guns drawn, he did not speak up immediately and advise them that the situation was under control and he had been freed. Rather, he remained silent when the police asked who had called, despite the fact that the people in the house being held at gunpoint. Any unexpected move by someone inside or outside the house could have resulted in a shooting, yet he recklessly ignored these possibilities, making the police repeatedly demand to know who had made the call. Under the totality of the circumstances, defendant certainly acted recklessly with respect to the public inconvenience, annoyance or alarm caused by his conduct and undoubtedly created a hazardous or physically dangerous condition by any act which served no legitimate pur pose of defendant. It is of no moment that this particular disturbance lasted less than an hour, unlike in Oliver, supra, 320 N.J. Super. at 412-13, because the danger of drawn guns inside and outside the house was great. The elements of a violation of N.J.S.A. 2C:33-2a(2) were all proven beyond a reasonable doubt, even if defendant thought when he made the call that he had some reason to do so, because that reason ceased to exist when he was released from the room in which he claimed he was being held by a man with a gun. His actions in this respect were reckless.

Affirmed.

Neither the 911 tape nor this videotaped statement were included in the appendix on appeal nor was the playing of these tapes recorded by the municipal court clerk when they were played for the municipal court judge during the trial, as is required by Rule 1:2-2, providing that "[u]nless a transcript thereof is marked into evidence, a verbatim record shall also be made of the content of an audio or video tape played during the proceedings and the tape itself shall be marked into evidence as a court's exhibit and retained by the court." (Emphasis added.) Thus, we do not have the benefit of this evidence on appeal and cannot consider it for any purpose.

In this appeal, defendant asserts that the municipal judge made a fact-finding that a gun was held to defendant's head. A careful review of the judge's findings impeaches that assertion. He was merely referring to an argument made by defendant's attorney and mentioned what he heard in Sayegh's videotaped statement, but did not adopt it because it was not competent evidence. Even if he misquoted either, in this fact-finding, he expressly rejected any justification for the call to 911, because there was no evidence that a gun was ever pointed at defendant, even if there was a gun in the house.

Defendant also urges that the videotaped statement of Sayegh demonstrates that he had a reasonable basis for calling 911, but as we have already observed, see supra note 1, that statement was not accepted for its truth, but only as corroboration for the officers' testimony. As a result, we cannot consider this argument on appeal.

N.J.S.A. 2C:33-2b(1) provides that "a person acts purposely with respect to the nature of his conduct or result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result . . . ."

(continued)

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A-2484-07T4

March 6, 2009