STATE OF NEW JERSEY v. JOYCE RZUCEK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4699-06T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOYCE RZUCEK,

Defendant-Appellant,

and

ROBIN SEIFERT,

Defendant.

________________________________

January 19, 2011

Submitted January 5, 2011 - Decided

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal Docket No. 34-06.

Robert L. Tarver, Jr., attorney for appellant.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Thomas Cannavo, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Joyce Rzucek was tried before the Seaside Park Municipal Court and found guilty of resisting arrest, N.J.S.A. 2C:29-2a, and improper behavior by engaging "in fighting or threatening, or in violent or tumultuous behavior," N.J.S.A. 2C:33-2a(1). The charges stemmed from a confrontation between defendant and two individuals on the boardwalk in Seaside Park.

Defendant appealed to the Law Division for a trial de novo pursuant to Rule 3:23-1. After conducting an independent review of the record developed before the Municipal Court and considering the arguments of counsel, Judge Villano acquitted defendant of resisting arrest and found her guilty of improper behavior by engaging in fighting behavior, N.J.S.A. 2C:33-2a(1). The judge imposed the appropriate assessments and court costs.

The relevant facts are as follows. On August 31, 2003, defendant was working at her concession stand on the Seaside Park boardwalk. Defendant had her pet dog with her at the time. At approximately 12:30 a.m., Lucilla Laborda and John Rhinesmith began playing with the dog. For no apparent reason, Rhinesmith raised the dog by his collar and dangled him in the air. Defendant "hopped over the counter[,]" grabbed the dog, and told Rhinesmith to leave. An argument ensued between the three individuals. According to defendant, Laborda spit on her and struck her in the back of the head with a barstool, Rhinesmith grabbed defendant's hair and pulled hair out of her head, and the two punched her. Defendant claimed she grabbed a stool not to throw it but merely to separate herself from Laborda.

Police Officer Charles Notare of the Seaside Park Police Department testified that he arrived at the scene at approximately 12:25 a.m. and saw defendant engaged in a confrontation with Laborda on the boardwalk, which was crowded with people. Defendant grabbed a barstool, threw it at Laborda striking her, continued the fight, and tried to hit Laborda with her hands. Defendant ignored Notare's commands to stop, and as he attempted to physically restrain her, she tried to pull away from him, prompting him to bring her to the ground and arrest her.

Finding Notare's testimony "believable" and "descriptive of what was occurring," Judge Villano concluded that defendant engaged in fighting behavior when she threw the stool, which struck Laborda, and continued the fight on the boardwalk despite Notare's command to stop. The judge also found it irrelevant that defendant may not have started the confrontation, concluding, "at the point in time, where it spills over onto the boardwalk, this is . . . a loud, boisterous, threatening and . . . a somewhat riotous-type situation . . . that the police are seeking to end and stop." This appeal followed.

On appeal, defendant raises the following arguments:

I. THE COURT ERRED WHEN IT FOUND DEFENDANT, JOYCE RZUCEK, GUILTY OF DISORDERLY CONDUCT, BECAUSE THE EVIDENCE CANNOT SUPPORT A FINDING THAT DEFENDANT ENGAGED IN DISORDERLY CONDUCT BEYOND A REASONABLE DOUBT.

A. The Evidence And Testimony Taken Did Not Support A Conviction For Disorderly Conduct Based On Fighting Or Other Tumultuous Conduct.

II. THE SUPERIOR COURT FAILED TO CONSIDER THE DEFENSE OF SELF DEFENSE OR SELF PROTECTION WHICH WAS WHOLLY APPLICABLE TO THE ACTIONS OF DEFENDANT AND WOULD HAVE NECESSITATED A NOT GUILTY FINDING.

A. The failure of Defense Counsel to advance a "Self Defense" defense at the trial level constituted ineffective assistance of counsel.

III. ALL COURTS BELOW ERRED BY FAILING TO DRAW AN ADVERSE INFERENCE FROM THE FAILURE OF THE DEFENSE TO PRODUCE WITNESS LUCILLE LABORDA, THE ONLY WITNESS WHO COULD TESTIFY AS TO THE CHARGE OF FIGHTING.

IV. NEWLY DISCOVERED EVIDENCE INDICATES CLEARLY THAT OFFICER NOTARE LIED CONCERNING HIS OBSERVATIONS AT THE SCENE OF THE ARREST OF JOYCE RZUCEK AND HER SISTER ROBIN SEIFERT.

We decline to address defendant's argument in Point IV about newly discovered evidence. Defendant did not raise this issue below. See R. 2:6-2; R. 4:50-1; State v. Robinson, 200 N.J. 1,20 (2009)

As for defendant's remaining arguments in Points I, II and III, we conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.

The record amply supports Judge Villano's conclusion that defendant was guilty of violating N.J.S.A. 2C:33-2a(1) beyond a reasonable doubt. Defendant threw a stool at Laborda and struck her, pursued Laborda and Rhinesmith, and continued the confrontation on the crowded boardwalk. Although the judge did not directly address self-defense, she implied, and we conclude, that defendant's conduct attenuated any self-defense claim.

As to Point III, "[f]or an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." State v. Clawans, 38 N.J. 162, 171 (1962) abrogated on other grounds by State v. Hill, 199 N.J. 545, 566 (2009) (holding that against criminal defendants, Clawans charges should not issue because it would improperly assist the State in prosecution). However, "the inference is not proper if the witness['s] . . . testimony would be cumulative, unimportant or inferior to what had been already utilized[,]" or where both parties having equal knowledge of an available witness's identity fail to call that witness. Ibid. Defendant subpoenaed Laborda to testify at trial, and thus, the witness was available to her.