STATE OF NEW JERSEY v. DEBORAH DEANS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3350-07T43350-07T4

A-3624-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEBORAH DEANS,

Defendant-Appellant.

___________________________________

 

Submitted March 10, 2010 - Decided

Before Judges Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal Nos. MA-2007-09 and S-2006-028816.

Martin Clearwater & Bell LLP, attorneys for appellant (James H. Allert, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Deborah Deans appeals her conviction for the petty disorderly persons offense of harassment, contrary to N.J.S.A. 2C:33-4(b). We affirm.

I.

We discern the following factual and procedural history from the record.

A.

In September 2006, Deans and complainant Jacqueline Daughtry Martin were residents of the Chancellor Apartments in Newark. There was testimony at the municipal court trial to the effect that the two did not get along with each other, although there was disagreement about who was at fault. Martin and her sister, Sonya Jarrett Gillens, testified to a series of prior incidents involving Deans' allegedly angry and disruptive conduct toward Martin. Deans testified that Martin was standoffish, that she thought that Gillens parked in her parking space at Martin's instigation, and that Gillens owed her money for some typing she had done at Gillens' request.

Both Martin and Deans agree that there was an incident involving both of them on September 17, 2006. According to Martin, she was walking with her son when they saw Deans. The son asked Martin whether Deans was the woman who was threatening her and, when Martin responded in the affirmative, the son asked Deans not to bother his mother any more. Deans testified that Martin's son threatened to kill her, having falsely accused her of making threats to Martin in the past.

On September 17, 2006, Deans made a complaint against Martin's son based on the alleged threat. On September 18, the police came to Martin's door, apparently to investigate the threat, but she did not answer their questions. According to Martin, Deans came to the door of her apartment about twenty minutes after the police left. Martin testified that Deans said that she would "fuck [Martin] up" if she came out of the apartment and that, if she saw Martin "at any time," she was "going to slice [Martin's] face because [Martin] thinks [she's] pretty." Martin further testified that she was "afraid of [Deans] because she attacked another woman that lived in the basement." Deans denied that she had any sort of interaction with Martin on September 18, and specifically denied threatening her as alleged by Martin.

B.

The trial in municipal court took place on January 17, 2007. After hearing testimony from Martin, Gillens, and Deans, the municipal judge found Deans guilty of harassment. She found Martin and Gillens to be credible witnesses. Based upon "her body language" and testimony, the judge determined that Deans was not credible.

The municipal judge also expressed her view as to what might have been the basis of the animosity between Deans and Martin.

For the record . . . Ms. Deans is of dark complexion and Ms. Martin is a very light complexion. I would say -- not to be -- to hurt anybody's feelings or anything -- with long hair. And this is somewhat straight. I don't know if that has anything to do with anything.

However, culturally, I understand African American culture. And that may have some issues. Because I can't imagine where this hostility is coming from Ms. Deans, for no apparent reason.

Deans appealed the conviction to the Law Division. She argued, in part, that the Law Division judge should disregard the municipal judge's credibility findings because her race-based explanation for the animosity between Deans and Martin demonstrated racial bias. She also argued that the judge should disregard the testimony about the other incidents of harassment because it was improper evidence of "other wrongs," inadmissible under N.J.R.E. 404(b).

The Law Division judge heard argument on the trial de novo on December 14, 2007, and delivered an oral opinion on January 18, 2008. She convicted Deans of harassment and imposed a fine of $200, costs, and required penalties.

The Law Division judge explained her reasons with respect to the factual and evidential issues as follows:

In reviewing the record and the evidence that was presented in this case the Court finds that the State did meet its burden beyond a reasonable doubt.

The testimony has established that the defendant, Miss Deans, did on September 18th, 2006, did threaten the defendant.

The Court is satisfied that the evidence has shown that the defendant went to the complainant's apartment on that date and pounded on the door and did threaten to slice her face.

Giving deference to the Trial Court's finding as to credibility, this Court is in agreement with the Trial Court that the complaining witness and her sister were very credible.

The Court agrees with the Municipal Court that the defendant was not credible and her demeanor was placed on the record by the Court so I am going to find the defendant guilty of [N.J.S.A.] 2C:33-4 and I will impose the same fine and penalties [imposed] by the Municipal Court.

[There are] two other issues that I will address. The defendant raises an argument that the Municipal Court had made some brief comments about race and those comments constitute error and warrants reversal of the decision.

I will note for the record that those statements . . . or findings were really more of an aside, I guess an attempt by her to explain what was going on between the parties. I agree with the defendant that the comments were inappropriate. They should not have been placed on the record by the Judge. However, I don't find that those comments in any way affected the impartiality of the Judge.

The Judge's decision was clearly based upon the evidence that was presented before her and clearly includes her full assessment of the credibility of the witnesses, and so I don't find that the fact that she made that comment in any way impaired her impartiality.

The Judge's decision was clearly based upon the evidence that was presented before when she put her statements on the record as to her finding of the credibility of the witnesses and so I don't find the fact that she made that comment in any way impaired her ability to judge this case and does not warrant reversal based upon her statement.

Number two, the defendant also argues that there was error by the Municipal Court in allowing testimony as to improper character testimony. However, this Court agrees with the Trial Court that those were to show facts and were admissible. They go to the victim's and defendant's state of mind and were for admissibility purposes.

It has been held that evidence of crimes, wrongs, or acts are admissible to the extent to establish motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake, so such matters are relevant to material issues in dispute. That's pursuant to New Jersey Rule of Evidence 404[(b)].

The Court finds in this instance that the testimony as to those facts were in fact relevant to the state of mind, . . . were admitted at trial and do not warrant reversal.

This appeal followed.

II.

Deans raises the following issues in her appeal:

A. [The municipal judge]'s racial comments constituted plain error that produced an unjust result.

B. The law division should not have deferred to the municipal court's credibility findings because the testimony of the complainant, Jacqueline Martin, is inconsistent on the face of the evidence.

C. The court erroneously admitted improper character testimony by Martin and Gillens, which led to an unjust result.

D. Defendant received ineffective assistance of counsel, in that trial counsel did not recommend application to the pretrial intervention program.

Our scope of review is generally limited. We generally "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Review in the Law Division is de novo on the record, Rule 3:23-8(a), but the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We are limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162.

A.

We turn first to Deans' arguments with respect to the comments by the municipal judge concerning her sociological theory on the origin of the hostility between Deans and Martin. Although we do not ordinarily review the actions of the municipal judge, as noted above, we must do so in this case because Deans argues that the judge's racial views infected her determinations of credibility, to which the Law Division is generally required to defer and did defer in this case. State v. Perez, 356 N.J. Super. 527, 533 (App. Div. 2003) ("A trial de novo on the record, based on acceptance of the credibility determinations of a judge who ought to have recused himself, is inconsistent with due process.")

We agree with the Law Division judge that the comments by the municipal judge were inappropriate. Her job was to listen to the testimony, find the facts, and apply the law to the facts to determine whether the State had met its burden of proof, and not to engage in a sociological analysis of the parties. We also agree with the Law Division judge's determination that the record does not reflect actual bias with respect to the decision made by the municipal judge.

The test to be applied in a case such as this, however, is not just whether the judge was actually biased, but whether "a reasonable, fully informed person [would] have doubts about the judge's impartiality." DeNike v. Cupo, 196 N.J. 502, 517 (2008). That standard applies to the actions of a municipal judge. State v. McCabe, 201 N.J. 34, 43-44 (2010).

In Perez, supra, 356 N.J. Super. at 532-33, we reversed the conviction because the municipal judge had made remarks about immigrants who requested interpreters. We explained our reasons as follows:

There was substantial evidence in this case that defendant understood and spoke English, even though it was not his first language. Nonetheless, the judge decided that defendant was entitled to an interpreter. The problem is that he did so in a manner that a reasonable person would take as reflecting bias. We note in particular these statements cited above: "When are we going to stop this." "These Spanish people coming in here and saying, I want an interpreter." "Somewhere this has got to stop." "You've got to give them credit. They just -" "Well, I guess I better do it. I'd have the ACLU and the people marching outside with signs and so forth."

Those comments were not addressed alone to whether defendant was himself misleading the court; rather, they lumped him together with an identifiable minority against whom the judge was expressing anger, and they suggested that the judge's lack of belief in the validity of defendant's request was based, at least in part, on the supposed improper conduct of the minority group to which he belonged.

Our State Constitution provides, "No person shall be denied the enjoyment of any civil . . . right, nor be discriminated against in the exercise of any civil . . . right, . . . because of . . . race, color, ancestry or national origin." N.J. Const. art. 1, 5. Moreover, group libel, which includes defamation of a class of persons based on those constitutional categories, mars civil discourse, and certainly is reprehensible in the halls of justice. Cf. State v. Gilmore, 103 N.J. 508, 524-32 (1986). . . .

In State v. Roberts, 47 N.J. 286 (1966), the Supreme Court reversed a jury's guilty verdict, which was fully supported by the evidence, because there was a dispute between the court stenographer and the trial judge as to whether he used a racial epithet during jury selection. Without resolving the factual issue as to whether the judge actually used the epithet, the Court reversed, concluding:

[W]e are in an area of great current sensitivity, and no matter how the courts deal with the issue, there may remain a doubt that the issue was handled objectively. For this reason, and although we are satisfied justice was done, we conclude, with much reluctance, that the image of justice would be better served by a new trial.

[Id. at 291.]

In this case, the judge did not use a racial epithet or make a statement that could reasonably be interpreted as reflecting a prejudiced view that she held herself. Instead, she commented on a type of discrimination that can exist within a minority community, see Enrique Schaerer, Intragroup Discrimination in the Workplace: The Case for "Race Plus", 45 Harv. C.R.-C.L. L. Rev. 57 (2010), and speculated as to whether that type of discrimination may have been a motivating factor in this case. Although her speculation was inappropriate because irrelevant, our review of the entire record convinces us that there was no actual discrimination and that "a reasonable, fully informed person" would not "have doubts about the judge's impartiality."

B.

We next turn to the issue of the testimony about the other incidents between Deans and Martin. The incidents at issue involved (1) Deans swearing at Martin after her sister parked in Deans' parking space, (2) Deans accusing Martin of having a sexual relationship with her sister, and (3) Deans honking her horn in the early morning hours and swearing at Martin when she complained about the noise. Although not the subject of objection at the municipal trial, Deans objected to consideration of that testimony at the trial de novo, arguing that it was "other wrongs" evidence prohibited by N.J.R.E. 404(b).

With respect to this issue, our standard of review is abuse of discretion. State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.) ("Trial judges are entrusted with broad discretion in making evidence rulings."), certif. denied, 178 N.J. 36 (2003).

That exercise of the Law Division judge's discretion must be viewed in the context of the statute under which Deans was charged. N.J.S.A. 2C:33-4(b) provides, in pertinent part: "[A] person commits a petty disorderly persons offense if, with purpose to harass another, he: . . . b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so[.]" To obtain a conviction, the State must show that the alleged conduct was engaged in "with the purpose to harass." State v. Hoffman, 149 N.J. 564, 577 (1997); Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995). In State v. Castagna, 387 N.J. Super. 598, 606 (App. Div.) (citations omitted), certif. denied, 188 N.J. 577 (2006), we noted that "[t]here is rarely direct proof of intent, and [that] purpose may and often must be inferred from what is said and done and the surrounding circumstances" and that "[p]rior conduct and statements may be relevant to and support an inference of purpose."

In the context of a bench trial, we find no abuse of discretion in the Law Division judge's decision to consider the testimony at issue. The prior incidents provided the context for the relationship between Deans and Martin for the purposes of determining intent and for determining credibility with respect to the events of September 17, which Deans claimed led Martin to file a false claim against her. In any event, we also conclude that, if there was error, it was harmless and would not require us to set aside the conviction.

C.

Deans' remaining arguments are without merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We note only the following.

With respect to inconsistencies or inaccuracies in Martin's testimony, we are bound by the standards set forth in Johnson, supra, 42 N.J. at 162, which provide that the trial judge's factual conclusions can be overturned only if those conclusions are not supported by credible evidence in the record. Our review of the record convinces us that the evidence fully supports the Law Division judge's finding of guilt.

Allegations of ineffective assistance of counsel are ordinarily not raised on direct appeal because they usually require consideration of facts that are not part of the record, as is the case here. See State v. Preciose, 129 N.J. 451, 460 (1992). In addition, it appears that, because Deans was charged with a petty disorderly persons offense, she would not have been eligible for pretrial intervention under Guidelines 2 and 3(d) had she applied. R. 3:28.

For all of the reasons set forth above, we affirm the conviction on appeal.

 
Affirmed.

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A-3350-07T4

May 10, 2010