STATE OF NEW JERSEY v. MICHAEL D. EMANUEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL D. EMANUEL,

Defendant-Appellant.

___________________________________

December 16, 2016

Submitted April 6, 2016 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. MA-2014-029.

Furst & Lurie, LLP, attorneys for appellant (Raymond M. Baldino and Henry F. Furst, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant Michael D. Emanuel was tried before the South Orange Municipal Court and convicted of committing the disorderly persons offense of lewdness, N.J.S.A. 2C:14-4a. The municipal court sentenced him to pay a maximum fine of $1000 and ordered him to pay court costs and other mandatory penalties. Pursuant to Rule 3:23-8(a), defendant appealed to the Law Division for a trial de novo based on the record developed before the municipal court.

The Law Division Judge reviewed the testimony of the witnesses before the municipal court and found the State proved, beyond a reasonable doubt, that defendant committed the disorderly persons offense of lewdness, as defined in N.J.S.A. 2C:14-4a, when he exposed his penis to four women who were seated on a bench at the South Orange train station. The judge sentenced defendant to pay the same fine and mandatory penalties imposed by the municipal court. The Law Division Judge memorialized his factual findings and legal reasoning in a written opinion, dated January 23, 2015.

In this appeal, defendant argues the eyewitness testimony describing the man who allegedly exposed himself contained inconsistences that were sufficient to raise a reasonable doubt about his culpability. Defendant also claims he was denied the opportunity to address the court before the imposition of sentence, in violation of Rule 3:21-4(b). After reviewing the record, we discern no legal basis to reverse defendant's conviction. The Law Division Judge reviewed the testimony of the eyewitnesses and determined their credibility, giving due deference to the municipal court judge's firsthand observations of the witnesses' demeanor on the stand. State v. Kuropchak, 221 N.J. 368, 382 (2015) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). But we agree that defendant was denied his right, pursuant to Rule 3:21-4(b), "to make a statement in his . . . own behalf and to present evidence in mitigation of punishment." We thus remand the matter to the Law Division for resentencing, at which time the court shall afford defendant the opportunity to exercise his rights under Rule 3:21-4(b).

We derive the following facts from the record developed before the South Orange Municipal Court and subsequently reviewed de novo by the Law Division.

At approximately 9:30 p.m., on July 6, 2013, J.B.1 (Julia), V.F. (Veronica), K.H. (Kathy), and D.F. (Donna) were seated on a bench located at the platform of the South Orange Train Station waiting for the train. Julia, Veronica, and Kathy were friends and on their way to New York City. Donna was traveling alone and did not know the other three women seated next to her. Julia was the first witness called by the State. She is a German national and resided in South Orange at the time of the incident; she worked as an au pair.

Julia testified that, after waiting for approximately ten minutes, "[w]e saw a guy coming right across us, and then my friend [Veronica,] who was sitting on my left side, she got his attention because his penis was sticking out of his pants." In response to the prosecutor's question, Julia identified defendant as "the individual that [she] observed with his penis outside of his pants[.]" With respect to his attire, Julia described the man as wearing "a plain white t-shirt and blue jeans three-quarter long to his knees." According to Julia, the train station platform was well-lit.

In response to the prosecutor's questions, Julia made clear she did not in any way entice the man to expose himself or approach her or her friends. She also testified that "[a]fter a few seconds" defendant used his left hand to masturbate in front of her and her friends. At the time, Veronica sat on Julia's left side and Kathy sat on her right side. Julia also noticed something particular about defendant's eyes.

Q. Now, ma'am, are you certain that it was this defendant that you identified earlier that you saw on the platform?

A. Yes, I am.

Q. And how can you be so sure about that?

A. Well, as I mentioned before, I realized something about his eyes. I noticed something.

Q. Well, tell us about that. What did you notice about --

A. Yes.

Q. -- his eyes, or . . . what did you notice about this defendant's eyes?

A. I noticed that his eyes were looking in two different directions.

Q. Okay.

A. I'm not sure about the correct English term, but one eye was looking to the left side and the one to the right.

Julia testified that this experience was upsetting. As the three women retreated from the bench, Veronica yelled at the defendant and exclaimed, "Are you crazy[?]" They also walked Kathy back to her car, which was parked across the street from the train station. Julia and Veronica returned to the train station after Kathy left. On their way to the station platform, Julia testified that they saw defendant "crossing the street and walk[ing] in our direction[.]" According to Julia, defendant wore the same clothes and still had his penis exposed. He also walked with a limp.

Defendant entered a "burger place" that Julia identified as "Stony's," which is located "across the station [and] next to the parking lot." At this point, Veronica saw a police officer who was directing traffic on South Orange Avenue. Julia waited in front of Starbucks, while Veronica ran to report the incident to the police officer. Julia testified that the police officer accompanied them as they searched for defendant. They soon found defendant seated in his car, which was parked in a handicap reserved parking space at the train station's parking lot. Defendant held a cup and a bag of food from Stony's.

Julia told the police officer that defendant was the man who had exposed himself to her and the other women seated on the bench at the train station platform. Based on the accusations made by Julia and Veronica, the police arrested defendant on the charge of lewdness.

South Orange Police Detective Steven Davenport was the officer who handcuffed defendant at the scene of his arrest. Davenport testified that, prior to being handcuffed, defendant was "next to his vehicle. He was yelling. He was making a commotion, and I reached over and said to him, knock it off, just . . . put your hands behind your back . . . and let's [get] over to the police car."

South Orange Police Officer Herron Dunston transported defendant from the scene to the police station. Dunston testified that defendant was already handcuffed when he arrived at the parking lot. Defendant was placed inside the police vehicle and guided to the cell upon arrival. Dunston testified defendant did not have any difficulty entering or exiting the police car while handcuffed; he also walked to his cell without difficulty or assistance. Detective Davenport processed defendant's arrest procedure. He noticed defendant had a "slight limp," but confirmed that defendant otherwise walked without difficulty or assistance.

Defendant called Donna as his witness. She testified that, on July 6, 2013, at approximately 9:50 p.m., she was seated on a bench located on the train platform and was next to "three young girls to the left side of me."

DEFENSE COUNSEL: Okay. What did you observe happen?

A. I was [on] my phone initially. And then[,] like I said, I saw a gentleman walk up and stand[] in front of them. And out of the corner of my eye, I saw that he had unzipped his pants and had his private part hanging outside of his pants.

DEFENSE COUNSEL: And then what happened?

A. After that, I spoke loudly to him so as to scare him off so he could stop doing what he was doing, and then he ran off, and I went downstairs to go see or grab a police officer that had just happened to be driving by.

DEFENSE COUNSEL: Okay. Now you gave a description of the individual to the police. Is that correct?

A. Yes.

DEFENSE COUNSEL: Okay. How old did you describe him to be?

A. Between . . . 16 and 20, early 20s.

DEFENSE COUNSEL: Would it fair to say . . . [he] was a young . . . gentleman?

A. . . . Yes. Young gentleman.

DEFENSE COUNSEL: Now did you notice anything else about him?

A. Just his dark complexion and then his, like, lazy eye.

. . . .

DEFENSE COUNSEL: And you indicated he ran off?

A. Yes.

DEFENSE COUNSEL: Do you mean physically he ran?

A. Physically ran off.

. . . .

DEFENSE COUNSEL: When you made the observation of him exposing himself to . . . the three girls, can you describe to the [c]ourt about how far away you were from him?

. . . .

A. Two feet . . . It was around two feet.

. . . .

DEFENSE COUNSEL: Were you able to get a good look at him?

A. Yes.

DEFENSE COUNSEL: You eventually went to the police headquarters, and they showed you a photo array?

A. Right.

DEFENSE COUNSEL: Were you able to pick out any of the individuals in that photo array?

A. No.

. . . .

DEFENSE COUNSEL: Mr. Emanuel, please stand up and face the witness. . . . Ma'am, is this the individual that you saw that night?

A. No.

Defendant also called Dr. Alice Cohen, a physician who specializes in hematology and oncology.2 Dr. Cohen testified that she treated defendant for Sickle Cell Anemia, which she defined as "a life-long blood disorder[.]" Dr. Cohen testified that "the most common complication [of this disorder] is the pain crisis which is due to clot vaso occlusion or clotting of the blood vessels by sickly shaped cells." The harm that Sickle Cell Anemia inflicts on the human body starts at birth "and leads to significant damage of many vital organs as well as bone muscle, and then kidney, heart, et cetera."

Dr. Cohen testified on March 5, 2014. She testified defendant had walked with a cane for "at least two years." She opined defendant needs the cane to walk. He can only walk short distances without a cane and can climb stairs "with difficulty." Further, Dr. Cohen testified that defendant cannot run.

Defendant also testified in his own defense. At the time of the incident, he worked for the Division of Child Protection and Permanency. He denied that he sexually menaced the women on July 6, 2013. He testified that he went to Stony's that night "to purchase a hamburger on wheat bread with fried onions and ketchup. And then [went] across the street to the Stone Cold Ice [sic] Creamery[] and [] purchased a combo milkshake with vanilla and strawberry ice cream."

Defendant testified he had a hip replacement fifteen years before this incident because he has "vascular necrosis," which he defined as a "deterioration of [his] bone fragments." He often uses a cane to walk. On cross-examination, defendant admitted he did not use a cane that night when he went to Stony's to buy the hamburger. He said he was seated in his parked car when a police officer approached him and asked if he could speak to him. But instead of speaking to him, defendant testified that the officer asked "two young . . . Caucasian women standing there, is this him[?] . . . [T]hey nodded their head yes."

Defendant testified that, when he was arrested, he wore his Fairleigh Dickenson University or "FDU alma mater sweatshirt."3 Defendant denied he had exposed his penis to the women involved in this case. The appellate record contains a lewdness arrest report from the South Orange Police Department, dated July 7, 2013, with a photograph of defendant wearing the t-shirt. The document also has an indication showing it was admitted into evidence, as defense exhibit D-1, before the municipal court on March 5, 2014.

After conducting a de novo review of the evidence presented in the municipal court, the Law Division Judge accepted Julia's account of events as "extremely credible, extremely strong, and extremely believable." The Judge thus rejected Donna's testimony as not credible, specifically noting that her physical description of the suspect changed between her statement to the police and her testimony in court.

Defendant now appeals raising the following arguments.

POINT ONE

THE LAW DIVISOIN [SIC] ERRED IN FINDING EMANUEL GUILTY BEYOND A REASONABLE DOUBT GIVEN THE INCONSISTENT AND INCREDIBLE TESTIMONY.

POINT TWO

THE FAILURE OF THE MUNICIPAL COURT TO PROVIDE THE DEFENDANT AN OPPORTUNITY TO ADDRESS THE COURT BEFORE SENTENTICING [SIC] WAS PLAIN ERROR THAT REQUIRES A REMAND FOR RESENTENCING.

In his brief before this court, defendant urges us "to review the evidence anew and . . . find it was insufficient to support a finding of guilt beyond a reasonable doubt." Defendant's request directly violates the well-established standard of appellate review that our Supreme Court recently reaffirmed, which holds "appellate courts should give deference to the factual findings of the trial court." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 470-71 (1999)). The Court stressed that "[t]hose findings must be upheld, provided they 'could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid. (quoting Locurto, supra, 157 N.J. at 471). Our Supreme Court explained, "Deference is warranted because the 'findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

We thus defer to the Law Division's factual findings based on its determination of the witnesses' credibility. The court found defendant guilty of the disorderly persons offense of lewdness. Under N.J.S.A. 2C:14-4a, "[a] person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed." Julia's testimony of defendant's conduct on July 6, 2013, addresses all of the substantive requirements of this offense. Julia testified she felt alarmed and upset when defendant approached her and her friends with his penis exposed and began masturbating.

Defendant is African American. He argues that the Law Division Judge failed to question the accuracy of Julia's identification of defendant when it was a cross-racial identification. Defendant notes in his brief

The reality is that judges will not exhibit overt and intentional biases on the bench. A different, more subtle form of racism, perhaps equally insidious, still infects our society and its legal system: unconscious racial prejudice. This [c]ourt must not ignore the now well-understood dynamics of unconscious racism and its insidious impact on our legal system.

This court is keenly aware of the insidious effects of latent, subconscious racial bias. See State v. Brown, 442 N.J. Super. 154, 184-85 (App. Div. 2015) ("Racial bias is repugnant to any notion of fairness or impartiality; it is the antithesis of justice under the law."). Our Supreme Court has also "recognized that witnesses may have a more difficult time when they identify a person of a different race[.]" State v. Smith, 224 N.J. 36, 51 (2016) (citing State v. Cromedy, 158 N.J. 112, 120-23 (1999)). Further, the Court appreciates that "cross-racial identifications require careful scrutiny[.]" Ibid. (citing Cromedy, supra, 158 N.J. at 131). But after carefully reviewing the record presented to us, we discern no basis to infer that the Law Division Judge or the municipal court manifested any racial bias or other type of invidious discrimination against defendant.

The concern that the Supreme Court addressed in Cromedy involved the need to instruct lay jurors about the pitfalls of cross-racial identification.4 We presume trial judges keenly understand these cultural and psychological factors and closely review a witness's cross-racial identification of a defendant by applying the same standards we expect jurors to follow. We emphasize that nothing in the record suggests the jurists involved in this case were biased.

Finally, we are compelled to remand this matter for resentencing. According to Rule 3:21-4(b), "Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment." Here, the record shows defendant was not afforded this opportunity before the court imposed the sentence. We thus affirm defendant's conviction, vacate the sentence imposed by the court, and remand for resentencing.

Affirmed in part. Reversed in part and remanded. We do not retain jurisdiction.

1 Pursuant to Rule 1:38-3(c)(12), all of the witnesses' names are fictitious to protect their identity and privacy.

2 The municipal court admitted Dr. Cohen as an expert witness qualified to opine "as to all fields . . . of medicine." The Law Division Judge did not make an independent assessment of Dr. Cohen's expertise or qualifications. The State did not object to Dr. Cohen's testimony before the Law Division.

3 Although defendant initially describes the clothing he wore on the night of the incident as a "sweatshirt," his attorney referred to the clothing as a "t-shirt."

4 Our model criminal jury charge also addresses this issue. See Model Jury Charge (Criminal), "Identification: Out-of-Court Identification Only" (2012).