STATE OF NEW JERSEY v. MURAD CIVAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1437-05T51437-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MURAD CIVAN,

Defendant-Appellant.

__________________________________________________________

 

Submitted October 31, 2006 - Decided November 15, 2006

Before Judge Coburn and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, BMA-004-13-05.

Theodore E. Kyles, Jr., attorney for appellant.

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Murad Civan, was convicted in municipal court and in the Law Division, after a trial de novo, of harassment, N.J.S.A. 2C:33-4(a), a petty disorderly persons offense. On appeal he offers the following arguments:

POINT I

THE WHOLESALE ADMISSION OF HEARSAY DECLARATIONS BY FATHER ANUSCIAN [SIC] INTO EVIDENCE VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 and 10.

POINT II

THE ADMISSION INTO EVIDENCE OF A DUBBED TAPE RECORDING OF VOICE MAIL MESSAGES DENIED MR. CIVAN OF HIS RIGHT TO CONFRONTATION AND VIOLATED THE GUIDELINES GOVERNING THE ADMISSION OF TAPE RECORDINGS IN STATE V. DRIVER, REQUIRING A REVERSAL OF HIS CONVICTION.

After carefully considering the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we add the following comments.

The prosecutor did not offer the out-of-court statements of the victim, Father Papken Anoushian, for their truth, and neither judge relied on them at all. The State's case was that defendant made harassing remarks to Father Anoushian by telephone. Two officers, who spoke with defendant and who listened to the tapes, identified defendant as the telephone speaker. Their identification was based solely on hearing defendant speak to them and hearing his voice on the telephone recordings. There were substantial corroborative admissions made by defendant at police headquarters, and when one of the officers described to defendant what he heard on the tape, the defendant said that "he was sorry, he was wrong, he shouldn't have said the things that he did, and that he just lost it."

Even assuming that some of Father Anoushian's remarks were inadmissible hearsay, which we doubt since none were admitted for their truth, we are satisfied that their admission was harmless error beyond a reasonable doubt, and therefore provides no basis for reversal. State v. Gillespie, 100 N.J. Super. 71, 83 (App. Div.), certif. denied, 51 N.J. 274 (1968).

Since defendant never requested a hearing pursuant to State v. Driver, 38 N.J. 255, 287 (1962), his claim of a right to such a hearing is governed by the plain error rule. R. 2:10-2. The purpose of a Driver hearing is to be sure that the device was capable of taking the statement, that its operator was competent, that the recording is authentic and correct, and that no additions or deletions have been made. State v. Driver, supra, 38 N.J. at 287. No evidence was submitted below and none is suggested on appeal that would put in doubt the reliability of the tape recordings made. Therefore, assuming error, it was not capable of producing an unjust result.

Affirmed.

 

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A-1437-05T5

November 15, 2006