STATE OF NEW JERSEY v. JOSEPH A. HUGHES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH A. HUGHES,

Defendant-Appellant.

________________________________

November 22, 2013

Submitted September 11, 2013 - Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 49-2010.

Joseph A. Hughes, appellant pro se.

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this pro se appeal, defendant Joseph A. Hughes appeals from his conviction in the municipal court and again on appeal in the Law Division, after a trial de novo, of two counts of simple assault, N.J.S.A. 2C:12-1(a)(1). We affirm.

According to the evidence presented at trial, the convictions arose out of a March 17, 2008 incident that occurred while his grandchildren were preparing to have lunch at their father's home. To the grandchildren, defendant appeared to have been in a bad mood and he had instructed them to do certain chores. He became upset with one grandchild, R.H., when she asked him what to do with her father's work clothes, which had been left on the table that was being set for lunch. Defendant grabbed R.H.'s arm and shook her arm so hard that she fell striking her head, causing a big lump to develop on her head. He then threatened S.H., grabbed his left arm, and jerked his arm, after S.H. told defendant he did not like Sloppy Joes. S.H. testified that his arm was red and he had two pinched nerves as a result of defendant's actions.

The children's mother reported the incident to police and following an investigation, defendant was charged with two counts of simple assault several days later. Defendant pled not guilty to the charges and trial proceeded in the Waterford Township Municipal Court over four non-consecutive days that took place between January 20, 2009 and October 15, 2010. At its conclusion, Judge Craig Larsen credited the testimony of the three children, two of whom were the victims. He found their testimony "clear, concise, believable, and honest." He additionally found that "the physical evidence corresponds exactly to what the children's statements were."

The judge imposed fines, penalties and a thirty-day jail term on each offense, which the court suspended conditioned upon defendant completing anger management treatment. In addition, the judge imposed a two-year probationary term, and ordered family counseling.

Defendant appealed his convictions to the Law Division. While the appeal was pending, the State discovered that portions of the municipal court record were unintelligible, and pursuant to Rule 3:23-8, requested a plenary hearing to supplement the record, which the court granted. The hearing was conducted before Judge Ronald Freeman at which S.H. and R.H. testified.

Upon completion of the plenary hearing, Judge Michael J. Kassel conducted the trial de novo based upon the municipal court record and the supplemental record from the plenary hearing. Based upon his review of the record, he was satisfied the State proved the charges against defendant beyond a reasonable doubt, and found defendant guilty of the charges. He sentenced defendant, imposing the same fines, penalties, suspended custodial sentence and conditions as the municipal judge. However, with respect to the two-year probationary sentence, he ordered that it would be suspended if defendant completed his anger management treatment in six months. The present appeal followed.

Defendant has not complied with Rule 2:6-2(a)(5) by setting forth his legal argument with "appropriate point headings into as many parts as there are points to be argued." However, as best as we can glean from the brief, defendant alleges: (1) the municipal judge was not impartial and failed to order the State to release exculpatory evidence to him; (2) the municipal judge failed to stay the proceedings until the court reporting machine was working and made erroneous evidentiary rulings; (3) the Law Division judge who presided over the plenary hearing, erroneously permitted a witness to testify, who had not testified in the municipal court proceeding; and (4) the Law Division judge, who conducted the trial de novo, was not impartial and failed to address errors committed by the municipal judge.

The task of the Law Division judge on an appeal from a municipal court judgment of conviction is not to search the record for error, nor decide whether there was sufficient credible evidence to support the municipal court conviction. Rather, the role of the Law Division judge is "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 judge "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 judge 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 judge 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." Ibid. In other words, "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." Ibid.

Governed by these standards, we discern no merit to defendant's challenge to the sufficiency of the evidence to sustain his conviction for simple assault. The record proof consisted of testimony and physical evidence consistent with that testimony. 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 find the record supports the conclusion, beyond a reasonable doubt, that defendant committed simple assaults upon R.H. and E.H., causing bodily injury to both victims.

We decline to consider the supplemental affidavit of S.H., the March 18, 2012 letter from S.H., and the March 2012 letter of Fernando Powers, included in defendant's appendix, as none of these items were part of the record below and defendant did not seek leave from this court to supplement the record. See R. 2:5-4 and -5(a) or (b); see also State v. Harvey, 151 N.J. 117, 201-02 (1997). Finally, the remaining arguments advanced by defendant, which we have considered but not specifically addressed in this opinion, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).