STATE OF NEW JERSEY v. LUIS LOPEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2821-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS LOPEZ,

Defendant-Appellant.

__________________________________________

February 16, 2012

Submitted November 2, 2011 - Decided

Before Judges Waugh and St. John.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 23-10.

George Rios, attorney for appellant.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Catherine Healy, Assistant Prosecutor, on the brief).

PER CURIAM

Following a de novo trial in the Law Division, defendant Luis Lopez was convicted of harassment, N.J.S.A. 2C:33-4(a).

The charge stemmed from an incident that occurred on January 5, 2010, on Columbia Avenue in North Bergen. There was no conflicting testimony, as only the victim testified at trial. The victim, Carl Occhipinti, a sanitation worker for the North Bergen Municipal Utilities Authority (MUA), was collecting garbage near defendant's home. At the time of the incident, defendant was a former MUA employee who had recently been terminated. Defendant told Occhipinti to advise his boss, "Johnny" (John Shaw), that "I'll be back," which according to Occhipinti, meant that defendant was going to get his job back at the MUA. Occhipinti responded that he had nothing to do with defendant losing his job. Occhipinti testified defendant thereafter said to him "he's going to punch me out and he's going, he's going to kill me." The police were called and, upon arrival, Occhipinti informed them he did not feel threatened, but the statements did annoy him. When Occhipinti returned home, he became afraid. He believed defendant, who was a professional boxer, was capable of hurting him.

On January 14, 2010, Occhipinti filed a complaint with the North Bergen Police Department asserting defendant had threatened to kill him on January 5, 2010. Occhipinti indicated in both his January 14, 2010 statement and on cross-examination, that defendant may have threatened him because Occhipinti was subpoenaed to testify against defendant at defendant's termination hearing from the MUA. On January 27, 2010, the Hudson County Prosecutor's Office amended the complaint to a disorderly person's charge of harassment in violation of N.J.S.A. 2C:33-4(a).

Trial was held in the North Bergen Municipal Court on May 20, 2010. The judge found defendant guilty on July 15, 2010. Defendant appealed his conviction to the Law Division, and on January 7, 2011, a trial de novo was held before Judge Frederick J. Theemling. After setting forth the appropriate standards for a trial de novo, Judge Theemling clearly and comprehensively made findings of fact with regard to each element of the crime, entered conclusions of law, and found defendant guilty beyond a reasonable doubt.

Defendant raises the following issues on appeal:

POINT I

THE TRIAL COURT ERRED IN ITS REVIEW DE NOVO BECAUSE THE STATE FAILED TO PROVE THE ELEMENTS OF THE ALLEGED OFFENSE BEYOND A REASONABLE DOUBT AND THE FINDINGS MADE BY THE COURT ARE NOT SUPPORTED BY THE EVIDENCE.

POINT II

THE COMPLAINING WITNESS HEREIN FILED THE COMPLAINT AND CONTINUED THE PROSECUTION IN THIS MATTER IN ORDER TO GAIN AN ADVANTAGE IN A RELATED CIVIL MATTER.

Our review is governed by the substantial evidence rule. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). In other words, our analysis is limited to a determination of whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). We "consider only the action of the Law Division and not that of the municipal court." Id. at 175-76 (citing State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). In its review, the Law Division must make its own findings of fact and conclusions of law, giving deference to the municipal court's credibility findings. Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2012). In our review we also note that when the municipal court and the Superior Court enter "'concurrent judgments on purely factual issues,'" those findings should not be disturbed "'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).

A person is guilty of harassment if, with "the purpose to harass another," he

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4 (emphasis added).]

Defendant was charged with violating N.J.S.A. 2C:33-4(a). In State v. Hoffman, 149 N.J. 564, 576 (1997), our Supreme Court analyzed the elements of this offense:

The plain language of subsection (a) provides that a person commits a petty disorderly persons offense if he or she communicates in a "manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). A violation of subsection (a) requires the following elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.

To be guilty of harassment in violation of the statute, a defendant must have "specifically intend[ed] . . . to harass the intended recipient of the communication." State v. Mortimer, 135 N.J. 517, 536, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994). A finding of purpose to harass may be inferred from the evidence presented. See State v. McDougald, 120 N.J. 523, 566-67 (1990). Experience and common sense may guide that determination. Hoffman, supra, 149 N.J. at 577; State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978).

Judge Theemling, in his comprehensive opinion, found that the State proved, beyond a reasonable doubt, each element of the offense, and found defendant guilty. We see no reason to disturb the verdict, as it was reached on sufficient credible evidence present in the record.

Our review of the record leads us to conclude that defendant's remaining arguments on appeal are without sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Defendant alleges that the MUA induced Occhipinti to file the complaint to gain leverage in a civil suit brought against it by defendant. A party's financial interest in litigation is a factor to be considered in weighing a witness's credibility. See State v. Pontery, 19 N.J. 457, 471-73, (1955). "An accused is entitled to show the status of a civil action previously begun by the prosecuting witness against him . . . as bearing upon the question whether the witness would profit by the conviction in a criminal case." State v. Williams, 16 N.J. Super. 372, 381 (App. Div. 1951).

Occhipinti was asked if his supervisor told him to file the complaint against defendant, to which he responded, "No, he didn't." Occhipinti also stated he was not aware of any offer to settle the civil suit if he agreed to dismiss the criminal case.1 Further, he testified that he was not aware of an offer made to defendant to dismiss the civil action in exchange for a dismissal of the criminal complaint, nor had anyone asked his permission to dismiss the complaint. Finally, he stated he was not aware of any correspondence between the MUA and defendant to that effect.

Accordingly, we affirm defendant's conviction after trial in the Law Division.

1 The determination of whether a matter should or should not be criminally prosecuted is fundamentally an executive determination delegated to the Attorney General and the county prosecutors. State v. Ward, 303 N.J. Super. 47, 56 (App. Div. 1997).