STATE OF NEW JERSEY v. VINCENT P. BOLAND

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5857-07T45857-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT P. BOLAND,

Defendant-Appellant.

________________________________________________

 

Argued February 1, 2010 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-056.

Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Edward J. Byrne, on the brief).

Lisa M. Scorsolini, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Scorsolini, on the brief).

PER CURIAM

Defendant Vincent P. Boland appeals his conviction for harassment, N.J.S.A. 2C:33-4(a), a petty disorderly persons offense. We reverse and remand for a new trial.

I

Defendant is a teacher at the Morris County School of Technology. The allegations arose from charges made by one student, L.G., who claimed that defendant made derogatory, ethnic remarks to him over the course of three years and that on one occasion, when reprimanding L.G. for disrupting the class, defendant allegedly punched L.G. in the stomach. Defendant denied the allegations and presented evidence showing that L.G. was disruptive in the classroom. The testimony of other students confirmed only a small portion of L.G.'s testimony, and all who were asked testified that defendant's conduct was done jokingly. They said L.G. claimed defendant gave him "a light tap," or "fake punch."

The municipal court judge found L.G. to be a credible witness and found defendant guilty of harassment. He imposed a fine of $400, court costs, and the required assessments and fees. Defendant appealed, and the Law Division judge, considering the matter de novo, found the defendant guilty and imposed a lesser fine of $150 and court costs.

On appeal, defendant raises the following issues:

POINT I

THE MUNICIPAL JUDGE'S FAILURE TO RECUSE HIMSELF SUA SPONTE DENIED DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND THE SUPERIOR COURT'S REFUSAL TO ORDER A NEW TRIAL HAD THE SAME EFFECT.

A. The Municipal Court judge was required to recuse himself sua sponte.

Point II

APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT APPELLANT HARASSED THE COMPLAINANT BEYOND A REASONABLE DOUBT.

A. [L.G.'s] Account is not credible.

B. In evaluating [L.G.'s] credibility the Superior Court violated Appellant's Federal and State Constitutional rights to due process and a fair trial in ignoring the absence in the record of critical information bearing upon [L.G.'s] financial interest in the case.

C. The Court below, like the Municipal Court, failed to consider character evidence it was required to consider.

D. The record does not support the Superior Court's finding that Boland acted with the intent to harass.

II

In applying our standard of review, we note that on appeal from a municipal court judgment, the Law Division is required to hear the case de novo based on the record made below. R. 3:23-8. While the Law Division must make its own findings of fact and conclusions of law, in doing so, it must give deference to the municipal court's credibility findings. Pressler, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2010). In our review of the Law Division's decision, we must "'determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Further, "[u]nder the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999). After a careful review of the record, we conclude that such a showing has been made in this case.

At the outset, we note that the credibility of the witnesses was a critical issue in the case due to the conflicting proofs on what had occurred. In particular, defendant's conviction turned in large part on the credibility of L.G., whom the municipal court judge found to be a believable witness. Yet, in reaching the determination that L.G. was credible, the municipal court judge refused to consider a crucial factor that could alter the calculus of L.G.'s believability.

The municipal court judge refused to allow into evidence and take into account L.G.'s financial interest in the matter. Specifically, the municipal court judge repeatedly prohibited defendant from introducing evidence that L.G. was pursuing a civil action as a result of the alleged harassment and that he hoped to profit from the suit. As the Law Division judge acknowledged, this evidentiary stance was in error.

A party's financial interest in the litigation is a factor to be considered in weighing the witness's credibility. State v. Pontery, 19 N.J. 457, 471-73 (1955) (finding trial court's refusal to allow cross-examination on the issue of witness's knowledge of possible financial gain resulting from the outcome of the suit to be error because it bore on her credibility). "An accused is entitled to show the status of a civil action previously begun by the prosecuting witness against him . . . as bearing upon the question whether the witness would profit by the conviction in a criminal case." State v. Williams, 16 N.J. Super. 372, 381 (App. Div. 1951). Further, even if the outcome of the harassment charge does not directly affect his civil case, L.G. would harm his civil case if he testified inconsistently in municipal court to his allegations in the civil case. The pending civil case provided a reason for L.G. to fabricate, embellish or exaggerate what happened, and thus was relevant evidence that should have been admitted and weighed when considering his credibility.

We also are unable to accord the municipal court judge's credibility findings the usual deference because it appears from the record that the judge's perception of the case was unduly colored by a personal experience he had in high school. While we recognize that all judges come to the bench with a myriad of experiences and that indeed the breadth of a judge's experience may enhance the ability to evaluate evidence, there may be occasions when the impact of a prior experience unfairly intrudes on the impartiality of the fact finding process.

At the commencement of his decision, the municipal court judge recounted his personal experience as follows:

When I was in high school a long, long time ago, there was an event that left a lasting impression on me, something that I will never forget, something that I was not a participant in, but just happened to be in a place where I got to observe it. And what I observed back then, and this was in 1962, there was a student sitting in the locker and one by one his classmates, and this was in the men's locker, so they were all young men, came up and punched him. And he stood there and he took it. Well, I had to find out why that happened. And I found out that the reason it happened was it was retaliation for the fact that the student had ratted on a teacher who had hit another student during physical education. The teacher got mad at the student and hit the student. The student that was hit said nothing. He didn't report it. But another student who in his place who saw it felt that that was improper conduct and reported it. And as a result, the teacher got into trouble and the student got retaliated against by the other students when they found out how it had happened.

Ironically, the teacher . . . was an extremely popular high school coach, high school gym teacher. I don't know what the circumstances were about, why he hit the student or even if he just hit the student in a soft manner, hard manner, punishing manner. It that's not relevant. What's relevant and why I bring this up is the fact that it's tough being a student because you know that if you do certain things you can get in trouble for not only with the teacher but with your fellow students. And this is probably magnified in a vocational school where there are so few students in the class.

Further, on cross-examination, one student testified that L.G. laughed and did not appear to be upset by a remark by defendant, although "he could have been you know. He could have been upset about it." The municipal court judge then made the following spontaneous statement:

You see, it's very interesting. It's a very intuitive statement. You're in class, you're a teenager, tough years, and you're in class and you have a teacher and the teacher is an authority figure and is in power. You're not in power. You're just a student. And it doesn't matter if the class is 4 or 5 people or 20 or 25 people. If the teacher says something that's directed at you and is derogatory towards you and everybody laughs, you laugh along because you don't want to be isolated. You want to be part of the crowd. So you laugh along. That doesn't mean it doesn't hurt and it doesn't affect you. I'm not saying that that has anything to do with my decision, but I'm just saying you have to look at the overall circumstances of what the scenario was, what the stage was for when these alleged comments were made.

When finding L.G. credible, despite his failure to complain to anyone about the defendant's behavior over the course of three years, the municipal court judge stated: "I find [L.G.'s] testimony to be credible and believable. I can understand him being reluctant to report it on two levels. The first level being he did not want to be earmarked as a troublemaker with his fellow students. He did not want to get Mr. Boland in trouble." However, L.G. never testified that he did not complain because he was afraid of retaliation or resentment or any negative reaction by fellow students. Here, the municipal court judge appears to be projecting his personal experience upon the facts of this case.

Defendant explains that he did not move to recuse the municipal court judge because he was unaware of the judge's personal experience until the decision was rendered at the end of the case, but argues that the judge should have sua sponte recused himself. However, the judge himself may not have appreciated that the experience, so remote in time, would unduly influence his opinion.

In any event, we are unable to give the credibility findings of the municipal court judge the usual deference due to the concern that his perception of the case was colored by his prior experience and the evidentiary error in refusing to consider L.G.'s financial interest in these events when weighing his credibility. Accordingly, we remand for a retrial before a different Law Division judge. The retrial is not a de novo trial based on the earlier testimony. Rather a new trial must be conducted with witnesses testifying in order that the trier of fact can determine credibility.

III

We also reverse because no adequate findings were made on the intent required to sustain a charge of harassment. Defendant was charged with harassment under N.J.S.A. 2C:33-4(a), which provides that "a person commits a petty disorderly persons offense if, with purpose to harass another, he: a. [m]akes, or causes to be made, a communication . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm." The criminal code defines "purposely" as follows:

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.

[N.J.S.A. 2C:2-2(b)(1).]

To be guilty of harassment in violation of the statute, a defendant must have "specifically intend[ed] . . . to harass the intended recipient of the communication." State v. Mortimer, 135 N.J. 517, 536, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994).

Thus, in order to be guilty of this offense, defendant must have made the asserted statements with the purpose of harassing L.G. The testimony of the witnesses, including L.G., is that defendant said the statements in a joking manner. As one student confirmed, defendant was not "speaking in a mean-spirited way." Further, the record indicates that L.G. was obstreperous the class clown. As the Law Division judge stated at the conclusion of this decision:

I'm not for one second suggesting that Mr. Boland in any way is racially motivated. I am not suggesting that he's not a great teacher; he probably is, because some of his students hold him in such high esteem.

Nor am I saying that he hasn't helped L.G. He got him into the skills U.S.A. program when he didn't have to. But I am satisfied that he did do those did say those things and do those things and they continued on or about February 28th, and he did it with the purpose to harass. And it was in a manner likely to cause annoyance or alarm to L.G.

Now why do I think he did it? Which is not relevant to my finding because I'm satisfied beyond a reasonable doubt he's guilty of the petty disorderly persons offense. Why do I think he did it? I don't mind telling you that but it doesn't have anything to do with the findings I've made. And I've alluded to it before. [L.G.] is a cutup in class, he's rude in class, he's an instigator in class. They're not words that anybody else used. He's in the middle of it. I think that's one of the things that Mr. Boland said.

. . .

I think for a brief moment or moments he's lost his patience and he's done things that he probably wouldn't do otherwise.

We recognize that a court may infer a purpose to harass from the evidence. State v. Hoffman, 149 N.J. 564, 577 (1997). "Common sense and experience may inform that determination." Ibid. The harassment charges in this case must be viewed in the context of the teacher-student relationship involved. On one hand, we recognize that due to a teacher's position of power, students may be more vulnerable to statements made by a teacher. On the other hand, due to a teacher's role in prodding students to perform at their best and in attempting to bring disruptive students under control, students often may be annoyed or irritated by what a teacher says.

Statements made by a teacher, no matter how ill advised, if sincerely said to address legitimate teaching issues such as class control or encouraging academic performance, do not constitute harassment. If the statements are nonetheless improper, they should be dealt with in the academic or civil context. It is only where the statements are said with animus, with the purpose to harass the student, independent of any legitimate teaching concern, that the harassment statute should be invoked. On remand, careful attention must be paid not only to determining the credibility of the witnesses to decide what actually happened but also to ascertain if defendant had any intent to harass within the meaning of the statute.

 
Reversed and remanded to be heard before a different Law Division judge.

(continued)

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A-5857-07T4

March 23, 2010