STATE OF NEW JERSEY v. VLADIMIRA ILIEVA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3450-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VLADIMIRA ILIEVA,

Defendant-Appellant.

________________________________

March 9, 2011

Argued: December 6, 2010 Decided:

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 38-09.

Vladimira Ilieva, appellant, argued the cause pro se.

Steven J. Harbace, Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio, Hudson County Prosecutor, attorney; Mr. Harbace, on the brief).

PER CURIAM

Defendant Vladimira Ilieva appeals from her conviction for theft of services, contrary to N.J.S.A. 2C:20-8a, and resisting arrest, contrary to N.J.S.A. 2C:29-2a, and from the dismissal of her cross-complaint against Port Authority Officer Arelys Matos charging Matos with assault, contrary to N.J.S.A. 2C:12-1a. Finding no merit in the issues defendant raises in this appeal, we affirm.

The operative facts can be simply stated based on the record in the municipal court. On February 27, 2009, Matos was in uniform on security duty at the Pavonia-Newport PATH station in Jersey City from two to ten p.m. She was downstairs in a monitoring room with cameras and at approximately 5:40 p.m. she observed defendant on the video monitor "pushing open the handi cap gate into [the PATH] system without paying the posted fare." Matos walked out of the monitoring room and "waited at the bot tom of the escalators [until defendant] went to the bottom and down to the concourse level."

Matos called defendant over, briefly detained her, and asked why she had not paid. Matos repeatedly asked defen dant to go upstairs to pay the fare, but defendant stated that the "Port Authority owed her money" so she "no longer wished to pay." Defendant "admitted to not paying the fare." When defen dant refused to go upstairs to pay, Matos told her to leave the station, but she refused to do so. Matos then tried to escort defendant out of the station, but defendant resisted. Matos told defendant if the resistance continued, she would place her under arrest. Defendant continued to resist so Matos used force to restrain her before placing her under arrest. The incident was captured on the surveillance system video, which was ulti mately played at the municipal trial and on de novo review in the Law Division.

Defendant was charged with theft of services, contrary to N.J.S.A. 2C:20-8a; defiant trespass, contrary to N.J.S.A. 2C:18-3b; disorderly conduct, contrary to N.J.S.A. 2C:33-2; and resisting arrest, contrary to N.J.S.A. 2C:29-2a. The complaint alleged that defendant committed the offense of theft of ser vices "by purposely [obt]aining services, to wit [PATH] train service, without payment or offer to pay by the [posted] $1.75 use fare, knowing the services are only available for compensa tion, [spe]cifically by manually opening the handicapp [sic] gate and entering the [PATH] system." Another complaint stated that defendant resisted arrest by "purposely prevent[ing] a law enforcement officer [from] effecting a lawful arrest, by failing to comply with officer[']s direction to place [hands] behind her back[, and] using her arms to push away from [the arresting officer]."

On the day defendant was charged, she filed a cross-complaint against Matos alleging assault, contrary to N.J.S.A. 2C:12-1a. Her cross-complaint stated that Matos committed an act of assault upon defendant by "jumping on her back[,] pushing her to the ground, pulling [her] hair[,] and banging her head to the ground."

During the municipal trial, defendant admitted, "It is true that I did not swipe a card. That's true. It's true that I manually opened the gate. But I do not agree that I did not pay the PATH system for the use of the service." On Friday, Febru ary 27, 2009, she "was in a hurry" and planned on purchasing an unlimited monthly pass the next Monday. She stated that she thought she "should purchase it on Monday, since [she had] over paid the PATH system over . . . almost six years . . . from defective Quick cards." She estimated that she had "lost at least $100" from Quick cards. Thus, she thought entering the system was "not a big deal" because she had "paid enough."

While defendant did not "think that [she] yelled" at Matos, she testified that "sometimes [she] tend[s] to . . . be over[ly] enthusiastic about things." She did not "like the tone of [Matos's] voice" and found her to be "belligerent." She insisted that during the portion of the video where she and Matos were not visible, she was trying to operate a recording device.

According to defendant, although Matos had warned her that she could arrest her, defendant was "on the ground" before she was advised that she was under arrest. She testified that she put her head back because she believed that it was Matos's "goal, to put [her] head into the ground." She testified that at first she thought that the passerby had come to help her but then realized that he was coming to help Officer Matos. He told defendant to "calm down, ma'am."

On cross, defendant claimed that she "never refused to leave." She said that instead she had asked for "just a sec ond." She admitted that she was "successful in not strik ing [her] head on the ground." She again admitted that she "did not swipe a card" but disagreed that she did not pay. Neither side presented further testimony as to the assault charges against Matos.

The municipal judge was "convinced beyond a reasonable doubt that [defendant] proceeded to go into the PATH station train area without paying" and defendant admitted that she had not paid. He further found from the video that Matos was clearly not shoving defendant but rather escorting her to the bottom of the escalators and pointing upstairs for defendant to pay the fare. However, defendant would not comply and Matos attempted to place her under arrest, but a struggle ensued with defendant refusing to comply. At that point, Matos threw defen dant to the ground and applied handcuffs despite her continuing resistance.

Applying the theft-of-services statute to the facts, the judge found that the State had proved its case beyond a reason able doubt. He found that he was not "convinced beyond a rea sonable doubt that [Matos] . . . stated to [defendant], now that you're not going to pay[;] now you just have to leave. I think it was a more instantaneous decision to put [defendant] under arrest." Thus, he found her not guilty of the trespass charge. For the resisting arrest charge, he found from his observation of the video that for at least forty-two seconds defendant tried to avoid arrest and, even after Matos got her to the ground, defendant "was still noncompliant." Thus, he found defendant guilty of resisting arrest. Because the charge of disorderly conduct was "duplicitous" and was based on "the same series of events," he found her not guilty of that charge.

Finally, the judge found that Matos had probable cause to arrest defendant for all the charges and "used the proper force." Matos properly used her discretion, and "once [defen dant] decided not to comply[, she] had every right to place [defendant] under arrest." He found that "Matos had no intent to commit an assault against [defendant]" but rather "was effec tuating an arrest, which . . . she had probable cause to do." Thus, he found Matos not guilty of assault.

The judge noted that [defendant] had no prior criminal convictions before imposing sentence. For the theft-of-service conviction, he imposed a fine of $100, $33 in court costs, a $50 VCCB fine, and a $75 Safe Neighborhood fine. For resisting arrest, he imposed the same fines, bringing the total to $516 in fines and costs. Defendant appealed to the Law Division on September 21, 2009.

Upon de novo review, defendant argued that she "entered into the station and proceeded . . . towards the area you take the train[;] . . . I've taken the train for many years so I knew that I could usually get through the handicapped gate without too much trouble, without swiping my card. So I did that." She further stated that she had her PATH card in her possession, "but it did not have a balance on it." The judge asked her why she would be entitled to use the train when her card did not have a balance, and defendant replied, "Because my thinking was that, okay, I've paid enough." She maintained that she did not swipe a card because she was in a hurry, but admitted that there is a mechanical reader device for swiping cards at the gate that she had used on prior occasions.

The State argued that although defendant maintained in her brief that she had not actually boarded the train, "New Jersey case law clearly shows that once you proceed to a point . . . where there should have been compensation for such services, whether or not there's actually fulfillment, whether or not she gets on the train is irrelevant." Further, while defendant com plained about overpaying in the past, "she continued to use the [PATH] system after that point and understood that every time that she wanted to enter the train system she had to swipe her card. And for some reason this time she chose not to which is a violation of 2C:20-8."

As to the resisting arrest charge, defendant argued that she was not told that she was under arrest and not given an opportunity to go back and pay. She contended that she did not resist. The State urged that because defendant committed theft of service, her arrest was lawful. Moreover, because defendant refused to comply with the officer's requests and continued to struggle, the conviction should be affirmed.

As to the assault charge against Matos, defendant stated that she suffered bodily injury and had bruises on her elbow. During the municipal court trial, evidence was admitted that defendant was photographed during processing, and the photograph did not reflect any head or facial injuries. Defendant, how ever, argued that other bruises took longer to develop, includ ing one on her thigh. The State contended that Matos was justified in using reasonable force.

The judge noted that she had viewed the video three times and took "everything in consideration" before placing her findings on the record, giving deference to the credibility findings made below. Having reviewed the evidence in the record, the judge made virtually identical fact-findings and reached the same legal conclusions as the municipal judge. She also imposed the same sentence that was imposed by the municipal judge. This appeal followed.

Defendantraises thefollowing issuesfor ourconsideration:

[DEFENDANT] WAS BEATEN AND ARRESTED WITHOUT PROBABLE CAUSE. THE CHARGES AGAINST [DEFEN DANT] CONSTITUTE A CASE OF MALICIOUS PROSECUTION.

We note that the scope of our appellate review in this case is limited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division conducts a trial de novo on the record developed in the municipal court, pursuant to Rule 3:23-8. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The Law Division judge is bound to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the wit nesses." State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted); State v. Locurto, 157 N.J. 463, 472-74 (1999). The Law Division judge then finds the facts anew and reaches his or her own independent conclusions. Ibid. If the judge finds the defendant guilty, the judge determines the aggravating and mitigating factors and imposes sentence anew. Ibid.

Here, the Law Division judge agreed with the municipal court judge's credibility assessments. Our review is limited to determining whether there is "sufficient credible evidence pre sent in the record" to support the findings of the Law Division judge, not the municipal court. Johnson, supra, 42 N.J. at 161-62. Like the Law Division, we are not in a good position to judge credibility and should not make new credibility findings. Locurto, supra, 157 N.J. at 470-71. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471. The Locurto Court enunciated the two-court rule as follows:

Although the Law Division did not engage in its own credibility determinations separate and apart from the Municipal Court, it described on the record the evidence and testimony presented before the Municipal Court that persuaded it to "accede" to the Municipal Court's credibility determina tions. Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observa tions of the character and demeanor of wit nesses and common human experience that are not transmitted by the record. Moreover, the rule of deference is more compelling where, as in the present case, 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 facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Locurto, supra, 157 N.J. at 474 (citations omitted).]

After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to war rant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the Law Divi sion judge in her oral opinion delivered on February 19, 2010. The findings and conclusions of the judge are supported by sub stantial, credible evidence in the record. Locurto, supra, 157 N.J. at 471.

A