STATE OF NEW JERSEY v. JOEL RESHEVSKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4381-04T24381-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEL RESHEVSKY,

Defendant-Appellant.

__________________________________

 

Argued April 3, 2006 - Decided June 19, 2006

Before Judges C.S. Fisher and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. BMA-3-38-04.

Alan Dexter Bowman argued the cause for appellant.

Annmarie Cozzi, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).

PER CURIAM

Defendant was convicted of harassment in violation of N.J.S.A. 2C:33-4(b) in the Alpine Municipal Court. Defendant appealed his conviction to the Superior Court where the municipal court determination was affirmed. The only issue raised on appeal is a claim that the assistance provided to defendant by his counsel was ineffective in that counsel failed to cite case law supporting the admission into evidence of an enhanced tape recording, which defendant contends would have impeached the credibility of the complaining officer. For the reasons expressed in this opinion, we affirm without reaching defendant's ineffective assistance of counsel argument.

Defendant appeared in the Montvale Municipal Court on August 16, 2000, for failure to obey a traffic control device in violation of N.J.S.A. 39:4-81. Defendant was found guilty and at the end of the trial the court asked defendant to leave the courtroom. The defendant then approached police officer Dennis Murphy, who testified against the defendant. The defendant was agitated and pointed his index finger at Officer Murphy, calling Officer Murphy a liar in a loud voice. Defendant was told to leave the courtroom by the police officer who then turned his back on defendant and walked away. Defendant, however, persisted, walking towards Officer Murphy again, still screaming that Officer Murphy was a liar. Officer Murphy turned to face the defendant, who stood a foot away from the officer. While yelling that Officer Murphy was a liar, defendant poked his finger into Officer Murphy's chest. After being poked twice, Officer Murphy told defendant that if he did it again the officer would arrest him. The defendant failed to heed the officer's warning and poked Officer Murphy in the chest another three or four times. Officer Murphy grabbed the defendant's hand and placed him under arrest. Defendant was extremely agitated, pulled away from Officer Murphy, and then Officer Jeffrey Markheim arrived to aid in the arrest of defendant for harassment in violation of N.J.S.A. 2C:33-4(b).

Officer Markheim testified at the harassment trial that he saw the defendant leave the courtroom and approach Officer Murphy in an excited and confrontational state. He also testified that defendant's face was inches from Officer Murphy's face. Although he did not observe the defendant touching Officer Murphy, he did observe the defendant yelling at him, calling him a liar, and pointing his finger in the direction of Officer Murphy's face or chest. Officer Markheim began moving toward defendant shortly before Officer Murphy arrested the defendant.

Sergeant Gregory Hanna, who was the court officer in Montvale on August 16, 2000, testified that he observed defendant call Officer Murphy a liar and point his finger at his face. Sergeant Hanna did not observe any contact between defendant and Officer Murphy. Sergeant Hanna also testified that he heard loud voices as he closed the courtroom door.

One of the issues raised on the de novo appeal was that defendant was improperly barred from having an expert witness testify at trial, as well as having an enhanced audiotape admitted into evidence. The audiotape at issue was the tape recording of the proceedings of August 16, 2000. The proffer made by defense counsel indicated that the enhancement disclosed a conversation between the municipal prosecutor and Officer Murphy in which Officer Murphy admitted that defendant had not physically touched him. Although defense counsel submitted two letter briefs in support of the admission of the tape, the municipal court judge made the following finding:

But you [defendant] didn't provide me with any authority that says that you can introduce an inaudible tape into evidence and then offer enhancement testimony, and that's what I'd ask for. So were your expert here today ... I was not prepared to allow him to testify. I'm uncomfortable that I'm going to listen to someone tell me what a tape says. And then I'm going to have the defendant - that was your proffer. The defendant, who has an interest in the outcome of this case, identify the speakers on a tape. The tape has been touched. It's being - it's been altered. By its very nature, it's been enhanced. So I'm going to take the position it's not - it is not admissible in evidence ....

The de novo judge noted that defendant contended that his expert, Tom Owen, "was able to enhance the sound of people's voices and reduce background noise on the tape in order to hear conversations that were inaudible on the original recording and contained 'significant admissions against interest by Officer Murphy.'" The de novo judge found that the municipal court "was not provided with sufficient authority that would allow for the introduction of the tape and enhanced recording into evidence." The de novo judge also found that on the second and third days of trial, June 15 and October 13, 2004, defendant's expert was not available. On the third day of trial the municipal judge decided that defendant would not be prejudiced by ending the trial and refused a continuance to bring the expert to court. The de novo judge found that it was "evident that the defendant had sufficient time and opportunity to call his witness and provide the court with legal authority for introduction of the tape and enhancement. Allowing the trial proceed another day would have been a non-economical use of the court's time."

Defendant has not directly appealed any of the conclusions of the reviewing court. Instead, defendant argues only that the attorney who represented him in the proceedings in municipal court and in the Law Division was ineffective, particularly with regard to those proceedings that ultimately led to the exclusion of an expert's testimony and an enhanced audiotape. Because the claim of ineffective assistance of counsel was not previously presented to the municipal court, the record lacks much of the information necessary to a full consideration of that contention. As in many such instances, we conclude that defendant's ineffective assistance of counsel arguments should first be presented to the trial court by way of a post-conviction relief petition. See, e.g., State v. Preciose, 129 N.J. 451, 460 (1992).

Accordingly, we affirm the judgment under review, but without prejudice to defendant's right to pursue his claim of ineffective assistance of counsel by way of a post-conviction relief petition.

 

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A-4381-04T2

June 19, 2006