STATE OF NEW JERSEY v. SAMUEL STANGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL STANGO,

Defendant-Appellant.

_________________________________________________

November 20, 2014

Submitted September 10, 2014 Decided

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 21-09-12.

Jacobs & Barbone, P.A., attorneys for appellant (Louis M. Barbone and YooNieh Ahn, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Michelle L. DeWeese, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Samuel Stango appeals from a judgment of conviction of simple assault, N.J.S.A. 2C:12-1(a), after his trial de novo. Defendant was sentenced to a fine of $250 and court costs of $158. We affirm.

On July 18, 2012, the municipal court judge found defendant guilty of simple assault. The charge of hindering, N.J.S.A. 2C:29-3(b), was dismissed.

Defendant appealed, and, on March 6, 2013, a de novo trial was held in the Law Division. On March 8, 2013, the Law Division judge issued an order and written decision finding defendant guilty of simple assault.1 On March 25, defendant filed a motion for amendment, see R. 1:7-4(b), which the court denied by order and written decision on June 7, 2013. While acknowledging the reference in its March 8 written decision concerning "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record" reflects an appellate standard of review, the court stated that this one line "did not taint or affect [its extensive de novo] review of the record in this matter."

On appeal, defendant argues the court erred, contending the misstatement of the standard of review warrants reversal, and further that the Law Division failed to make independent factual findings and made erroneous legal conclusions. We reject defendant's arguments and affirm.

The record discloses the following facts adduced from the trial de novo in the Law Division, on the record developed in the municipal court and "giving due deference to the credibility determinations of" the municipal court judge. Defendant, a police officer, and the victim had an on-again-off-again relationship over the course of one year. On the morning of March 21, 2012, the two had an argument over the telephone. During the argument, defendant alleged that the victim had a sweatshirt that belonged to him and he wanted it returned. The victim then drove to defendant's home. Defendant testified that he opened the rear deck sliding door and admitted the victim into his home. Upon entry, the victim proceeded to defendant's bedroom where she picked up a photograph of the couple, destroyed the frame, and crumpled up the picture. An argument ensued and the victim started to walk away, at which time defendant grabbed her by both arms and threw her against the wall. The victim received a bruise on her upper right arm and one on her head, which, the victim stated, was caused by her head striking a key hook mounted on the wall.

The victim sent numerous text messages to defendant after the incident regarding her injury, requesting to speak with defendant, and threatening to file a complaint, which, ultimately, she never did. Rather, defendant texted a superior officer informing him the victim might file a complaint alleging that he pushed her into a wall, which defendant stated was untrue. After reviewing the text, a senior officer was assigned to investigate the matter. When questioned, defendant denied any assault took place, but did admit that he and the victim had a verbal altercation. The victim was contacted by the investigating officer and interviewed at the police station. She discussed her injuries and claimed they were caused by defendant. The investigating officer observed the bruise on the victim's arm and a "blemish/darkening spot on her forehead," and concluded that the injuries were consistent with the victim's version of the events. However, another senior officer, who was also present during the victim's interview, testified that he did not observe any bump on or injury to the victim's forehead. On March 29, 2012, the investigating officer swore two complaints in the Lower Township Municipal Court charging defendant with simple assault and hindering.

In its written opinion, the Law Division court noted that the municipal court judge found the victim had a permanent bump on her forehead from an unrelated previous accident and was unable to find beyond a reasonable doubt that defendant caused any head injuries to the victim. The Law Division judge agreed the evidence supported that finding, but nevertheless found defendant "guilty of simple assault because he recklessly caused bodily injury to [the victim]." The judge stated that "it is clear that [the municipal court judge] found [the victim] credible and believed her version of the events[ ]that a physical confrontation occurred[ ]and this [c]ourt gives deference to [the municipal court judge's] credibility determinations." The judge further determined that "the photographic evidence clearly demonstrates, and this [c]ourt finds, that [the victim] suffered physical injuries to her right arm as a result of [d]efendant's conduct . . . during the course of the argument, [when he] recklessly grabbed [the victim] by the arms and caused her bodily injury."

Defendant argued before the Law Division that even if he used force against the victim, he was justified in doing so because the victim was a criminal trespasser. The judge decided "that [the victim] was not a criminal trespasser during the altercation and that [d]efendant was not justified in using force to remove her from his home." The court further determined that "the use of non-deadly force against a trespasser only applies to defending against a 'criminal trespasser,' not a 'defiant trespasser.'" Finally, the Law Division judge found that "when the assault occurred, [the victim] was in the process of leaving defendant's home."

On March 8, 2013, the Law Division judge found defendant guilty of simple assault. This appeal ensued.

On appeal, defendant raises the following issues for our consideration

POINT I

THE LAW DIVISION JUDGE UTILIZED THE WRONG STANDARD OF REVIEW ON DE NOVO APPEAL AND FAILED TO CORRECT ON MOTION FOR REHEARING.

POINT II

THE LAW DIVISION JUDGE FAILED TO MAKE INDEPENDENT FINDINGS OF FACT BY COMPLETELY DEFERRING TO CREDIBILITY FINDINGS OF THE MUNICIPAL COURT, WHICH RESULTED IN THE COURT'S RELIANCE UPON FACTS NEVER EXISTING AND WHICH WERE NEVER PROVED AT TRIAL BEYOND A REASONABLE DOUBT.

POINT III

THE LAW DIVISION JUDGE ERRED AS A MATTER OF LAW IN FINDING THAT USE OF FORCE IS INAPPLICABLE TO A DEFIANT TRESPASSER.

When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995)). In doing so, the Law Division is "bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (alteration in original) (quoting State v. Locurto, 157 N.J. 463, 474 (1999) and State v. Johnson, 42 N.J. 146, 157 (1964)).

"Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62). Importantly, when the Law Division agrees with the municipal court, the two-court rule must be considered. Ibid. (quoting Locurto, supra, 157 N.J. at 474). "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). However, no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011) ("[A]ppellate review of legal determinations is plenary." (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995))).

On appeal, defendant argues many of the municipal court judge's findings of fact are not supported by the record. We reject this contention as our review considers 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)).

Defendant also contends that the Law Division judge employed an incorrect standard of review and failed to make independent findings of fact by completely deferring to the credibility findings of the municipal court judge, resulting in reliance on non-existing and non-proven facts. Defendant specifically asserts the record does not support the finding that the victim was in the process of leaving the defendant's house. We determine these arguments are unavailing.

Although the judge initially misstated the nature of his review, his second written opinion clearly clarified the proper standard of review and recited his obligation to make independent findings: findings that, ultimately, were reflected in his written opinion. After reviewing the totality of the evidence, the judge stated, "it is clear that [the municipal court judge] found [the victim] credible and believed her version of the events[ ]that a physical confrontation occurred [ ]and this [c]ourt gives deference to [the municipal court judge's] credibility determinations." The victim testified she

[S]tarted to walk toward the front door and he grabbed me by both my arms and kind of rushed me up the hallway. And then I tried to get out of his grip and he ended up in front of me and grabbed me by my arms again and threw me up against the wall.

When asked if she was thrown out of defendant's home, she replied: "No, he didn't throw me out of his house. I left."

Based on the record, the Law Division judge found that the victim was in the process of leaving defendant's home when he grabbed her. He further found that defendant "recklessly grabbed [the victim] by the arms and caused her bodily injury."

These specific factual findings reflect the Law Division's independent review of the municipal court evidence. Indeed, these facts sufficiently support defendant's conviction of simple assault beyond a reasonable doubt.

Finally, defendant's contention the victim was a trespasser is unsupported and lacks sufficient merit to warrant discussion in this opinion. See R. 2:11-3(e)(2).

We conclude there is sufficient credible evidence present in the record to support the findings of the Law Division judge, and discern no error in his legal determinations or conclusions reached on the basis of the facts.

Affirmed.

1 The March 8 order was amended by an order dated April 1, 2013, to correct the statutory reference to simple assault.