STATE OF NEW JERSEY v. EVELYN SABOL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2838-08T42838-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EVELYN SABOL,

Defendant-Appellant.

________________________________

 

Submitted November 17, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from Superior Court of New Jersey, Law

Division, Hudson County, Municipal Appeal No. 25-08.

Evelyn Sabol, appellant pro se.

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Nidara Y. Rourk, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Evelyn Sabol appeals from her conviction in the municipal court and again on appeal in the Law Division, after a trial de novo, of simple assault, N.J.S.A. 2C:12-1a(1). We affirm.

The incident arose out of a May 2, 2008 altercation between defendant and Elaine Gass on the first floor of a senior citizen's building in Bayonne where both women reside. As a result of the incident, both women filed complaints against the other.

According to Gass, she went to the first floor exercise room because she heard a noise coming from that area. Upon arrival, she inquired of defendant about the noise and defendant told her to leave. When Gass turned to leave, defendant pushed and grabbed her arm. Gass screamed and then called the police who, upon arrival, escorted Gass to her apartment. Gass suffered a bruise to her arm as a result of the incident, which was depicted in a photograph admitted into evidence.

Defendant offered a different account. According to defendant, she had just entered the senior citizen's building with coffee, bagel, and newspaper in hand when she saw Gass. In an attempt to avoid a confrontation with Gass, defendant stood in an alcove near the exercise room. Gass approached defendant and asked her what she was doing near the exercise room. Defendant responded that she was exercising, but Gass replied that defendant could not be exercising because she had coffee in her hand. Gass then began pushing, shoving, and yelling at defendant to get out of the building. Defendant tried to walk away very fast, but Gass continued to push and shove her, "like I had a pit bull chasing me." After leaving the building, defendant went to the police station and filed a complaint against Gass. She admitted that she did not suffer any injuries as a result of the incident. Defendant also testified that Teddy Humphries, a former employee of the senior citizen's building, witnessed the incident, but was not in court on the day of trial.

At the close of evidence, the municipal court judge credited Gass' version, dismissed the complaint against her, and found defendant guilty of the disorderly person's offense of simple assault. In comparing the credibility of the two parties, the judge concluded:

I have a photograph marked Gass-1, which Ms. Gass testified was a photograph of her right arm, indicating a bruise, and what clearly looks like a bruise to me. I admitted this into evidence over Ms. Sabol's objection. . . .

This is an actual bruise. Ms. Gass is a truthful witness. And I believe her when she tells me this is the bruise that she got in the altercation with you. And that that's what caused her to call the police.

. . . .

And, Ms. Sabol, you have a problem with reality. You know, there are some things that are so inane that you remember perfectly that frankly, are wrong. And that there are other things that you would think in, in similar circumstances you might want to remember, like dates, times and places, that you have no idea when these events took place. But you do remember it was the second or third week in July or -- you know? And that on March 22nd at 9:00 it was still light out. It's ridiculous.

So I give no credibility whatsoever to Ms. Sabol's testimony.

Accordingly, upon finding defendant guilty, the judge sentenced her to a $500 fine, other assessments and a one-year term of probation.

On the trial de novo, the Law Division judge agreed, finding defendant guilty of simple assault, N.J.S.A. 2C:12-1a(1). The judge reasoned:

However, after examining the photograph, I am satisfied that it depicts a genuine bruise. I find appellant's tattoo scheme allegations to be fantastic. However, based upon the record, I find no reason to doubt the testimony of Gass. After careful review of the record which requires deference according to the credibility determination of Judge Carpenter, this Court finds as a matter of fact beyond a reasonable doubt that appellant did, in fact, purposely cause bodily injury to Gass resulting in a bruise to her arm on May 2nd, 2008. Accordingly, this Court finds appellant guilty of simple assault.

The court imposed the same sanctions as did the municipal court judge.

This appeal follows in which defendant challenges the adjudication of guilt essentially as not founded on sufficient credible evidence.

The function of the Law Division on an appeal from municipal court is not to search the record for error by the municipal court, not to decide if there was sufficient credible evidence to support the municipal court conviction, but "to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge" to evaluate witness credibility. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000) (citing State v. Johnson, 42 N.J. 146, 157 (1964)); see also R. 3:23-8(a). In other words, the judge in a trial de novo must make his or her own independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).

In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a "close one." Ibid.; see also Avena, supra, 281 N.J. Super. at 333.

Just as the Law Division does when conducting a de novo review, we "defer to [the] trial court['s] 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." State v. Locurto, 157 N.J. 463, 474 (1999). Indeed, "the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Id. at 474.

Governed by this standard, we discern no merit to defendant's challenge to the sufficiency of the evidence to sustain her conviction for simple assault. The record proof consisted of two diametrically opposite accounts of the May 2, 2008 confrontation. Both the municipal court judge and the Law Division judge credited the State's version, and discredited defendant's defense, determinations to which we defer. Ibid.; Johnson, supra, 42 N.J. at 161. Accordingly, we conclude the record proof allowed for a finding, beyond a reasonable doubt, that defendant struck Gass in an attempt to cause her bodily injury, which Gass's photograph independently corroborated.

 
Affirmed.

Defendant offered a photograph depicting her on the day of the incident holding a cup of coffee, bagel, and a newspaper. The municipal court judge ruled the photo inadmissible as not probative of whether defendant hit Gass on the day in question.

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A-2838-08T4

December 14, 2009