SOUTH PLAINFIELD SENIOR RESIDENCE v. VERNETER CRAIG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1447-07T21447-07T2

SOUTH PLAINFIELD SENIOR

RESIDENCE,

Plaintiff-Appellant,

v.

VERNETER CRAIG,

Defendant-Respondent.

___________________________________

 

Argued September 22, 2008 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, LT-9556-07.

Jeffrey R. Kuschner argued the cause for appellant.

Jose G. Abreu argued the cause for respondent (Central Jersey Legal Services, Inc., attorneys; Mr. Abreu, on the brief).

PER CURIAM

Plaintiff, South Plainfield Senior Residence ("the landlord"), attempted to evict defendant Verneter Craig, a senior citizen, from its housing complex. The attempted eviction was premised upon N.J.S.A. 2A:18-61.1(p), a statutory provision that authorizes eviction where a landlord proves by a preponderance of the evidence that a tenant has made terroristic threats against it or one of its employees. See N.J.S.A. 2A:18-61.1(p). The landlord brought the present action against defendant after she had made disparaging and hostile comments about the building's superintendent in private discussions with her friend and fellow tenant.

After a two-day trial in the Special Civil Part, Judge Melvin Gelade found that the landlord had not proven the requisite statutory elements of a terroristic threat against an employee of a landlord and dismissed the action. The landlord now appeals, and we affirm.

The underlying dispute arises out of the discovery of some syringes by the superintendent, Orel Eliot, while he was removing trash from a garbage chute in the summer of 2007. That discovery caused the landlord to post a notice on the premises warning tenants, some of whom take insulin, not to discard syringes in the trash. These events became a topic of conversation during two private discussions between defendant, who has resided on the premises since 2002, and another tenant, Joyce Turner, who was a friend of defendant.

The first conversation occurred in Turner's apartment a short time after Eliot had found the syringes. According to Turner, she asked defendant, "did you hear that Orel [Eliot] almost got stuck with a syringe?" Defendant allegedly replied, "yeah, and I wish he hadda [sic] gotten stuck, and I wish it had been full of the [sic] AIDS." As Turner recalled it, defendant then added, "I know people that have it, and I can have that done." Defendant did not identify who she knew that was infected with AIDS, or how she would have obtained their bodily fluids and passed them onto Eliot.

In a second conversation between the two women, this time a telephone call initiated by Turner, defendant allegedly stated that Eliot "should have gotten stuck, or [I] wish he had got stuck."

On or about August 21, 2007, Turner informed Eliot about her second conversation with defendant. According to Turner, she told Eliot that defendant "had said that when we found the syringes, that she had wished he had got [sic] stuck with one of them, and that it was full of AIDS and he would die."

Eliot's recollection of his discussion with Turner differed. According to Eliot, Turner told him that defendant "plans to throw to throw a couple of needles, HIV needles in the compactor for for [him] to get stuck with it."

Following Turner's disclosure, Eliot told his supervisor, Evelyn Delgado, that defendant had planned to put HIV-infected needles in the compactor so that he would be stuck by them. Delgado called the police and relayed what she had been told. On that same day, a police officer interviewed Eliot, Turner and defendant. Defendant denied making the alleged threat. No arrest, criminal charges or other police action ensued.

Following the police investigation, defendant called Turner and Turner's husband to express her displeasure. Defendant was particularly upset that Turner had repeated to others what she had said about Eliot in private. This precipitated a series of heated telephone exchanges between the Turners and defendant. Turner then complained to the landlord's management. This led Delgado to send letters to both defendant and the Turners, remonstrating them to cease making harassing calls to one another.

The landlord then served defendant with a notice to quit, accusing her of making terroristic threats against Eliot, thereby constituting grounds for her eviction. The landlord demanded that defendant vacate her unit by September 4, 2007. Defendant responded with a letter denying that she had made any such threats. She did not vacate her unit as requested. Consequently, the landlord filed a dispossession action against defendant in the Special Civil Part in early September.

Both sides were represented by counsel at trial. The landlord called three witnesses: Turner, Eliot, and Delgado. Turner recounted her two conversations with defendant about the needles. She also described her reporting of those conversations and the events that followed.

Eliot testified that defendant does not like him because he rebuffed her when she once made a pass at him. He perceived that defendant was capable of obtaining and placing HIV-infected needles in the garbage, asserting that she is regarded as "mean" and that others in the building appear scared of her. Eliot also stated that whenever he walks by, defendant and her friends typically are "mumbling" and "laughing." However, Eliot denied having ever observed defendant acting mean in any way. Eliot also conceded that defendant never threatened him directly, and that he never confronted her about the alleged needle-sticking threat.

Delgado, the building manager, testified that she had known defendant for about two months when the alleged threat occurred. She recalled that defendant was very friendly to her at first, but their relationship changed once Delgado started getting complaints from other residents that defendant was "bossing them around." Delgado did acknowledge that defendant "was very active with the seniors, and [with] birthday parties," often helping out in the kitchen at such gatherings. Delgado explained that she involved the police at the direction of her boss. She also described her efforts to put an end to the subsequent mutually-harassing calls between defendant and the Turners.

Defendant was the sole witness in her own defense. In her testimony, she described Turner as formerly a "very close" friend, "the closest friend [she] had in the building at the time." She admitted that she had a single private conversation with Turner about the syringes, contending that Turner was the one who had brought up the subject.

Defendant specifically denied telling Turner that she wanted to stick Eliot with an HIV-infected needle. She termed the accusation "a big old lie." Defendant did acknowledge that she dislikes Eliot, in part because he allegedly throws away clothing and other personal items that tenants leave in common areas. Nevertheless, she disclaimed any desire to cause him harm. She also denied making a pass at him when he first started working at the complex.

Sifting through these proofs, Judge Gelade was persuaded that defendant had indeed made the statements about Eliot that Turner had reported. The judge observed that Turner's recollection was clear, and that she had "no reason to fabricate a story." Although the judge did not generally regard defendant as an untruthful person, he found that she failed to acknowledge her comments to Turner because she was embarrassed. The judge further noted that defendant admittedly disliked Eliot. Consequently, the judge found Turner's account of the conversations more credible than defendant's.

Even so, Judge Gelade further concluded that defendant's statements did not rise "to a level where it was an actual threat to commit an act of violence." The judge noted that there was no evidence that defendant actually knew someone with AIDS, or that she had the means to put infected needles in the trash. He instead characterized defendant's statements as "gratuitous" and "off the cuff." Her alleged threat "was just . . . a remark made [from] one tenant to another."

The judge specifically found that defendant did not intend that her comments be communicated to Eliot. He added that "I don't believe for a minute that this was a threat to commit an act of violence against Mr. [Eliot]. And even if it were, it wasn't made with the purpose to terrorize him . . . ."

Because the landlord had not proven the requisite elements of a terroristic threat by a preponderance of the evidence, Judge Gelade dismissed the complaint and vacated the notice to quit.

The landlord now appeals. It argues that (1) the judge's finding that defendant's statements were made "gratuitous" and "off the cuff" is unsound and not supported by substantial credible evidence, (2) the words uttered by defendant were sufficiently specific to comprise an actionable terroristic threat, and (3) defendant's statements were made in reckless disregard of the risk that they would be communicated to Eliot and would terrorize him. Having fully considered these points and the record as a whole, we are satisfied that Judge Gelade's ruling is amply supported by the evidence and is in conformance with the applicable law.

Our scope of review of Judge Gelade's findings, particularly in the context of this multi-day bench trial, is limited. In general, "findings by the trial court are binding . . . when supported by adequate, substantial, credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 56 N.J. 474, 484 (1974). We will not disturb the trial court's factual findings and legal conclusions "unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. Deference is "especially appropriate" where, as here, "the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).

The landlord particularly challenges Judge Gelade's finding that defendant's comments about Eliot were gratuitous and not intended to convey an actual threat. There is ample direct and circumstantial proof to support that finding.

Defendant's remarks were made in a private setting, to someone she then regarded as a close friend. She had no particular reason to expect that her friend would pass on the remarks to Eliot or to anyone else in management. Even though she did not like him, defendant had never threatened Eliot in the past. As the judge found, there was no evidence that she had the means to obtain an HIV-infected needle and to stick Eliot with it. Although defendant did not concede making the offensive remark, we defer to the judge's reasoned assessment that this elderly woman, who became the subject of investigation by both her landlord and the local police, simply was too embarrassed to acknowledge it.

On the whole, the judge's factual findings, including his determination that defendant's statements were gratuitous, were logical and well supported by the proofs. It is not our role to second-guess those findings here. Having observed the principals in court first-hand, the judge was in a superior position to gauge the import and nuance of defendant's words.

We also are satisfied that Judge Gelade correctly applied the law. We are mindful that a defendant does not have to communicate a terroristic threat to a victim directly in order for the threat to be actionable. See N.J.S.A. 2C:12-3 (defining terroristic threats); see also State v. Dispoto, 189 N.J. 108, 123 (2007). However, it must be demonstrated that the threat was made "'under circumstances under which it carries the serious promise of death.'" Dispoto, supra, 189 N.J. at 123 (quoting Cesare, supra, 154 N.J. at 403).

Given the overall context, the trial judge's determination that defendant's statements to Turner did not, as a matter of law, rise to the level of a "terroristic" threat is sound and entirely consistent with precedent. Although we certainly do not condone defendant's comments, the record as a whole supports the judge's assessment that they essentially were insufficient to warrant her eviction under N.J.S.A. 2A:18-61.1(p). See also 224 Jefferson St. Condo. v. Paige, 346 N.J. Super. 379, 389 (App. Div. 2002) (the Anti-Eviction Act "must be construed liberally with all doubts construed in favor of a tenant").

For all of these reasons, the judgment dismissing the landlord's eviction complaint is affirmed.

 

We need not decide here whether, hypothetically, the landlord appropriately could have served upon defendant a notice to cease disorderly conduct under N.J.S.A. 2A:18-61.1(b), thereby establishing a basis for a future eviction action if such disorderly conduct had persisted.

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A-1447-07T2

October 16, 2008