STATE OF NEW JERSEY v. EMILIO PEREZ

NOT FOR PUBLICATION WITHOUT THE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.

EMILIO PEREZ,

Defendant-Appellant.

__________________________________________

Argued May 27, 2015 Decided July 10, 2015

Before Judges Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal Nos. 25-2013 and 56-2013.

Edward A. Cridge argued the cause for appellant (Mellk O'Neill, attorneys; Arnold M. Mellk, of counsel; Mr. Cridge, on the brief).

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).

PER CURIAM

Defendant, Emilio Perez, appeals from his conviction for harassment and the forfeiture of his public employment as a public school teacher. We affirm.

We derive the operative facts from the record. Defendant commenced employment as a teacher at the Middlesex County Vocational School in Perth Amboy in September 2009, and was suspended from his employment in January 2012. In the course of his employment, defendant verbally harassed several of his students. Defendant targeted one student in particular, S.L., who is Jewish. In the presence of other students, defendant told S.L. to "go count your money, that's all you're good for." Defendant dropped a coin on the floor and told S.L. to pick it up since he was "Jewish." S.L. cried as a result of defendant's comments. Upon observing S.L. crying, defendant said "don't get all that [expletive] on my desk, take that somewhere else." Defendant also used expletives when referring to S.L. and ridiculed him for celebrating Hanukah.

Defendant also referred to an African-American girl, A.A., as "ghetto" and stated "we all know that black people steal." Defendant also called a student by a homophobic slur. Defendant's classroom conduct caused a student to engage in cutting her wrists. Another student harbored suicidal thoughts as a result of defendant's racist remarks and religious slurs.

In June 2012, defendant was charged with four counts of harassment, in violation of N.J.S.A. 2C:33-4(c). After trial in Municipal Court, defendant was convicted of harassing two students, A.A. and S.L. Defendant was acquitted of harassing two other students. The Middlesex County Prosecutor declined to apply for a waiver of forfeiture of public office. Based upon his conviction and the Prosecutor's decision not to seek a waiver, defendant was terminated from his employment and forfeited future public employment pursuant to N.J.S.A. 2C:51-2a.

Defendant filed an appeal in the Law Division seeking to overturn the convictions and the forfeiture of public office. After a trial de novo on the record, the Law Division judge found defendant not guilty of harassment of A.A., but guilty of harassment of S.L. The judge stated, "this court is firmly convinced that defendant s series of repeated slurs [and] abusive conduct [were] made with the purpose to alarm or seriously annoy [S.L.]" Regarding the forfeiture of public office, the judge rejected defendant's claim that the Prosecutor's refusal to seek a waiver amounted to an abuse of discretion.

On appeal defendant argues: he did not harass any student; s.l. was not competent to testify and the judge's consideration of his testimony was plain error; the evidence did not support defendant's conviction; and the Prosecutor's decision not to seek a waiver of forfeiture was an abuse of discretion. Having considered the record in light of defendant's arguments, we conclude the arguments are wholly without merit. We briefly add the following.

In an appeal from a de novo hearing on the record, we 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). When the Law Division conducts a hearing de novo on the record developed in the Municipal Court, our review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was 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. Johnson, 42 N.J. 146, 157 (1964)).

"Appellate courts would defer to the trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Ibid. (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). "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).

Defendant argues there was insufficient proof to support his conviction as to the "purpose" to harass. A person commits the offense of harassment if "with purpose to harass another he . . . [e]ngages 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(c). The word "harass" must be given its ordinary meaning, namely, to annoy, torment, wear out or exhaust the intended victim. State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.), certif. denied, 188 N.J. 577 (2006).

Two distinct elements must be established to prove the offense of harassment: a purpose to harass and an action under subsection (a), (b) or (c). Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988). A specific finding of purpose to harass is necessary for a conviction. It is not sufficient for the plaintiff to merely prove that the conduct in question had that effect; the plaintiff must prove that the defendant engaged in the conduct in question for the specific purpose of harassment. State v. Hoffman, 149 N.J. 564, 576-77 (1997).

There is no dispute that "[a] fact may be proved by both direct evidence and circumstantial evidence." Halvorsen v. Villamil, 429 N.J. Super. 568, 575 (App. Div. 2013) (citing State v. Phelps, 96 N.J. 500, 511 (1984)). "'Both direct and circumstantial evidence are equally acceptable forms of proof.'" Id. (quoting Newmark-Shortino v. Buna, 427 N.J. Super. 285, 312 (App. Div. 2012), certif. denied, 213 N.J. 45 (2013)). There is rarely direct proof of intent and purpose may often be inferred from what is said and done in the surrounding circumstances. See Model Jury Charge (Criminal) 4.181 "Intent" (June 2015); see also N.J.S.A. 2C:2-2.

Given our review of the record and our standard of review, we find there was sufficient credible evidence that amply supported the Law Division judge's determination. The judge properly determined defendant's repeated slurs and abusive conduct, antithetical to his role as teacher, were intended for the purpose to alarm, annoy and harass S.L.

Defendant further argues S.L.'s testimony, due to his "lack of fitness," should not have been considered.1 Even if we were to agree with defendant's argument that S.L's testimony should have been given little or no weight, the testimony was corroborated by several students, all of whom testified that defendant seemed to single out S.L. for abuse.

Additionally, defendant argues the Prosecutor's decision not to seek a waiver of the mandatory forfeiture of public office was an abuse of discretion. Forfeiture of public office is governed by N.J.S.A. 2C:51-2. In relevant part, the statute states

(a) A person holding any public office, position, or employment, elective or appointive . . . who is convicted of an offense shall forfeit such office, position or employment if

. . . (2) He is convicted of an offense involving or touching such office, position or employment.

. . . .

(e) Any forfeiture or disqualification under subsection a . . . which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application by the county prosecutor or the Attorney General and for good cause shown.

The county prosecutor's decision not to apply for a waiver is subject to judicial review under the abuse of discretion standard. Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571-72 (2002). The Attorney General's Office has issued guidelines to promote State-wide uniformity when considering a waiver decision. State v. Rone, 410 N.J. Super. 589, 606 (App. Div. 2010). There are many factors to consider within the guidelines, but some of the relevant ones here are: the "totality of the circumstances surrounding the event"; the nature of the offense; defendant's "moral turpitude"; and if the offenses constituted "part of a continuing pattern of anti-social behavior." See Flagg, supra, 171 N.J. at 578.

Here, defendant's conduct was both ongoing and pervasive. Students cited to similar harassment which occurred during the fall and winter of 2011-2012. Prior to these incidents, the school's administrators received complaints about defendant's classroom conduct for which he was disciplined. In reaching the decision not to seek waiver, the Prosecutor reasoned that defendant "grossly" violated the duties of his office by verbally abusing students in the classroom. The decision was also premised upon the input from the school board and the victims who "absolutely and unequivocally" sought forfeiture of defendant's position based upon his "harassing and bullying behavior." We are satisfied that the Prosecutor adhered to both the Attorney General Guidelines and controlling decisions of law in reaching his decision.

Finally, as the Law Division judge found, there was no abuse of discretion since defendant's conduct was "extremely egregious" considering his status as a teacher. The judge also found defendant's harassment conviction "touched upon" his office, triggering forfeiture under N.J.S.A. 2C:51-2a(2) and permanent disqualification under N.J.S.A. 2C:51-2d. We agree.

Affirmed.

1 Defendant presented no competent proof before the Municipal Court or the Law Division to support the bald allegation that S.L. was unfit to testify.