STATE OF NEW JERSEY v. DANTE METTA

NOT FOR PUBLICATION WITHOUT THE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.

DANTE METTA,

Defendant-Appellant.

November 18, 2013

Argued November 6, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-062.

Philip J. Matsikoudis argued the cause for appellant.

Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Joshua D. Detzky, Legal Assistant, on the brief).

PER CURIAM

Following a trial in the Little Silver Municipal Court1, defendant, Dante Metta, was found guilty of the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-2a(1). He was sentenced to a fine of $500, together with costs and other appropriate assessments. On the de novo appeal to the Law Division, defendant was again found guilty, and the same sentence was imposed. Defendant now appeals. After reviewing the record in light of the contentions advanced on appeal, we affirm.

We discern the following facts from the record. The incident occurred on September 5, 2008, when defendant accompanied his fiancée, Francesca Julian, and Ms. Julian's seven-year-old daughter, to a court-ordered visitation exchange with the child's father, Mark Andrews, at the Middletown Township police station. A similar visitation exchange two weeks earlier had led to defendant charging Andrews with harassment, N.J.S.A. 2C:33-4b. Julian brought a video camera to record the September 5, 2008 visitation exchange, and the video was admitted in evidence at the trial.

Defendant testified that as he escorted the child to meet Andrews in the parking lot of police headquarters, she became fearful of Andrews' friend, Angelo Aceta, who was brought along to witness the exchange. The child clung to defendant's leg, as Andrews and Cpl. Patricia Colangelo of the Middletown Township Police Department coaxed her to accompany Andrews. According to defendant, Andrews approached him "very angrily and aggressively." Before Andrews reached him, defendant raised up his hand. Andrews "postured up, [and] walked into my hand," before punching defendant twice. Defendant admitted striking Andrews, but could not recall where, and contended that he merely acted in self-defense. The two men then went to the ground, where defendant attempted to defend himself as they were "scuffling around." Andrews put him in a headlock, punched him in the face, and dug his finger into defendant's eye. When separated by the police officers who were called for assistance, he did not resist.

Julian testified, similarly indicating that Andrews walked up and "nailed" defendant. This caused her to briefly drop her video camera on the ground before again continuing to record the confrontation.

Andrews offered a different account. While in the parking lot, he observed that Julian was filming. He then entered police headquarters, requested assistance, and Colangelo accompanied him back outside. When he went to take his daughter, defendant blocked him, put his hand on Andrews' chest, and said "don't even try it." When Andrews pushed defendant's hand off his chest, defendant punched him three times in the face, twice more on the back of his head, and then jumped on his back. The men fell to the ground, where Andrews gained the upper hand and held defendant until other police officers arrived. Although he acknowledged hearing Colangelo direct them to stop fighting, he did not immediately get off defendant because he believed that defendant would just continue to strike him.

Andrews' friend, Aceta, supported his version. Aceta testified that Andrews requested him to come along as a witness because he was being harassed by defendant. According to Aceta, defendant punched Andrews in the face. Andrews did not punch defendant back, and instead tried to defend himself by covering his face. The confrontation ended with Andrews holding defendant on the ground, where a male officer had to physically separate them. Aceta indicated that he heard the female officer tell the men to "break it up."

Several police witnesses testified. Cpl. Colangelo confirmed that Andrews had entered police headquarters and requested assistance in the visitation exchange. She accompanied Andrews into the parking lot, where Julian was filming. She observed defendant approach with the young girl, who appeared to be afraid of Aceta. According to Colangelo, defendant then postured aggressively by pushing his chest out, and by telling Andrews "don't you." The men began pushing and shoving, and the child ran off screaming. Because her attention was diverted to the child, Colangelo did not observe who threw the first punch, although in her opinion defendant started the confrontation with his posturing and was the aggressor. Her verbal requests that the men cease fighting went unheeded. A female citizen walking in the parking lot nearby became very upset, and Colangelo asked her to summon more police assistance. Colangelo noted that defendant sustained a cut on his left eye and face in the scuffle, while Andrews had a bloody lip.

Upon learning of the confrontation, Lieutenant Neal Hansen exited police headquarters and observed the men wrestling on the grass area of the parking lot, with Colangelo standing over them, ordering them to separate. It appeared to him that defendant "was more the aggressor than Mr. Andrews." Hansen grabbed defendant and placed him in a compliance hold. Defendant "resisted slightly but did not struggle," and then complied with Hansen's instructions. Hansen ordered Andrews to move away, and he complied.

Patrolman Brian Dilworth was on patrol when he was dispatched to police headquarters on a report of a fight. As he approached in his patrol vehicle he observed that the two men appeared to be wrestling on the grass area, and were in the process of being separated. Upon arriving, he heard words being exchanged by the men and Julian, and observed the child screaming. Dilworth then signed complaints for disorderly conduct against defendant and Andrews, based on what he observed and the information supplied by his fellow officers. Additionally, defendant and Andrews signed complaints against each other for simple assault, N.J.S.A. 2C:12-1a, and harassment, N.J.S.A. 2C:33-4b.

In a comprehensive opinion, the municipal court judge determined:

While the testimony of the two defendants and their supporting witnesses contain opposite accounts of who may have incited the verbal altercation which escalated into a physical one between the two defendants, there is no contradiction of testimony that a fight did ensue on the premises of the Middletown Township Police Department in the presence of Cpl. Colangelo and the infant about to be exchanged. And that this fighting continued despite the request by Cpl. Colangelo to both defendants to stop fighting, to separate and to discontinue their verbal and physical contact with each other.

The judge then made specific credibility findings, and concluded:

The testimony of [Cpl.] Colangelo, Lt. Hansen and Ptlm. Dilworth that [they] did, in fact, witness the refusal of these two defendants to abide the order of [Cpl.] Colangelo to discontinue their fighting, to separate and to cease the violent behavior is clear and unequivocal.

Based on the very credible testimony of the three police officers, particularly weighing same against the significantly biased and inapposite testimony of the defendants, Ms. Julian and Mr. Aceta, the court does find that both defendants are guilty of recklessly creating the risk of public inconvenience, annoyance or alarm by engaging in fighting or threatening or in violent or tumultuous behavior in the accosting of each other during the transfer of an infant to the other's custody and the exchange of a physical contact upon each other's person and in the failure to [] heed the legitimate request of a police officer to discontinue fighting and to separate from each other in the police officer's presence and in the presence of the infant.

The breadth of the credible testimonial evidence supports this finding as does the video record offered by defendant Metta in his defense.

Finally, the municipal court judge acquitted defendant and Andrews of the cross-complaints for assault and harassment which they filed against each other, including defendant's harassment complaint against Andrews relating to the earlier incident in August 2008.

On de novo appeal, the Law Division judge gave deference to the municipal court judge's credibility findings, reviewed the evidence, including the defense video, and similarly adjudicated defendant guilty of the disorderly conduct offense. The judge noted the presence of the young girl and the female private citizen, and found that "clearly this was conduct that a [c]ourt could find beyond a reasonable doubt was [] threatening, violent, tumultuous behavior creating a hazardous condition in the front of the Municipal Court, in front of a police station, where others could have been injured, or others clearly did witness it." This appeal followed.

On appeal, defendant raises the following arguments:

I. THE COURT SHOULD REVERSE DEFENDANT'S CONVICTION BECAUSE THE GUILTY JUDGMENT DEMONSTRATES OBVIOUS AND EXCEPTIONAL ERROR WHICH IS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD AS A WHOLE.

II. THE COURT SHOULD REVERSE [DEFENDANT'S] CONVICTION OF DISORDERLY CONDUCT BECAUSE HE DID NOT PURPOSELY OR RECKLESSLY CAUSE PUBLIC INCONVENIENCE OR ALARM BY ENGAGING IN FIGHTING OR THREATENING OR VIOLENT OR TUMULTUOUS BEHAVIOR.

III. THE COURT SHOULD REVERSE [DEFENDANT'S] CONVICTION BECAUSE THE RAISING OF HIS ARMS AS HE WAS CHARGED BY AN ATTACKER DID NOT CONSTITUTE FIGHTING OR VIOLENT, THREATENING, TUMULTUOUS BEHAVIOR PURSUANT TO N.J.S.A. 2C:33-2(a)(1).

IV. THE COURT SHOULD REVERSE DEFENDANT'S CONVICTION BECAUSE THE [] MUNICIPAL COURT AND THE SUPERIOR COURT, LAW DIVISION FAILED TO RECOGNIZE SELF DEFENSE APPLIES TO DISORDERLY PERSONS OFFENSES WHEN A DEFENDANT'S SAFETY IS AT ISSUE.

V. THE COURT SHOULD REVERSE [DEFENDANT'S] CONVICTION BECAUSE THE [] MUNICIPAL COURT'S RESTRICTIONS ON CROSS EXAMINATION OF THE STATE'S WITNESSES VIOLATED [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO CONFRONT WITNESSES AGAINST HIM.

VI. THE COURT SHOULD REVERSE [DEFENDANT'S] CONVICTION BECAUSE OFFICER DILWORTH'S TESTIMONY AND THE VIDEOTAPE WHICH WAS IMPROPERLY EXCLUDED ESTABLISHES THAT POLICE OFFICER DILWORTH DID NOT WITNESS [DEFENDANT'S] ALLEGED VIOLATION OF N.J.S.A. 2C:33-2(a)(1).

We review the Law Division's decision employing the "substantial evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div.), certif. denied, 211 N.J. 608 (2012). We ask whether the Law Division's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964); see also State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). Once 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." Johnson, supra, 42 N.J. at 162. Notwithstanding the foregoing, our review of the legal conclusions that flow from established facts is plenary. See State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Essentially, in Points I, II and III, defendant contends that the evidence does not support his conviction of disorderly conduct. We disagree.

N.J.S.A. 2C:33-2a(1) provides, in relevant part, "[a] person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he (1) [e]ngages in fighting or threatening, or in violent or tumultuous behavior." The statute is confined to "public" inconvenience, which is defined as "affecting or likely to affect persons in a place to which the public or a substantial group has access. . . ." N.J.S.A. 2C:33-2.

Here, there is no question that defendant engaged in fighting and tumultuous behavior, and that he failed to desist from such conduct after being directed to do so by Colangelo. By engaging in such behavior and diverting police officers from their normal duties, defendant recklessly risked public inconvenience, annoyance or alarm, not only to the officers, but also, at a minimum, to the young child who was screaming, and the female citizen who Colangelo observed to be visibly upset.

While neither Colangelo nor Lt. Hansen observed who threw the first punch, both officers identified defendant as being more the aggressor, and their testimony was found to be credible. As we stated above, the municipal court judge made credibility determinations after observing the testimony of the witnesses and examining the evidence, including the defense video and photographs of Andrews' injuries. The Law Division judge reviewed the record and made similar credibility determinations. We defer to the judges' findings, particularly where both the Law Division and municipal court judges reached the same decision on witness credibility and found the same facts. "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." State v. Locurto, 157 N.J. 463, 474 (1999).

Defendant argues that Julian's video of the incident provides uncontroverted evidence that Andrews committed an unprovoked assault on defendant. However, we note that the quality and clarity of the video is poor, and that at least initially it was filmed from some distance. Defendant's own expert video technician, Michael Tevlin, conceded that "[t]he video itself is poor to begin with[,] and the dropping [of the camera by Julian] didn't help it." Further, the Law Division judge noted that words were exchanged between defendant and Andrews which could not be heard on the video because the radio was playing in the car while Julian was filming. We find that, under these circumstances, the video does not negate the close observations made by Colangelo and Hansen of the defendant's words and actions, nor is it sufficient to disturb the judges' credibility findings.

Defendant next argues that both the municipal court and Law Division judges erred in holding that defendant could not assert self-defense to a disorderly conduct charge. However, the Law Division judge did not rule out a claim of self-defense entirely. Rather, he expressly determined that it did not apply "in this case." He also found that defendant was actually the first to make contact by touching Andrews in a highly-charged situation. When coupled with the testimony of Colangelo and Hanson that they viewed defendant as the aggressor, the court properly discounted any self-defense claim. See State v. Rivers, 252 N.J. Super. 142, 149 (App. Div. 1991) ("It is generally accepted that one who provokes or initiates an assault cannot escape criminal liability by invoking self-defense . . . . The right to self-defense is only available to one who is without fault.")

As to Point V, we reject defendant's argument that the municipal judge's restrictions on cross-examination violated his confrontation rights. Recently, our Supreme Court explained the appropriate standard of review:

We review the trial court's evidentiary ruling under a deferential standard; it should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment. An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted.

[State v. J.A.C., 210 N.J. 281, 295 (2012) (internal citations and quotation marks omitted).]

Here, the municipal judge properly sustained objections to two questions posed by defense counsel on the basis that they were argumentative. With respect to counsel's request to play the video while cross-examining the officers, the judge properly exercised his discretion by not releasing two of the witnesses until after the video was presented, in the event that defense counsel then wished to further examine them. Additionally, the court viewed the video both as demonstrative evidence, and "for the purpose of potential impeachment of testimony that has previously been given." The judge also correctly refused to admit into evidence a defense videotaped reconstruction, which sought to challenge Ptl. Dilworth's testimony about the time it took for him to arrive at the scene, since this would naturally be dependent on traffic and weather conditions. We discern no abuse of discretion in any of the court's evidentiary rulings.

Finally, defendant argues that since Dilworth arrived later and did not actually witness the altercation, it was improper for him to sign the disorderly conduct complaint. N.J.S.A.40A:14-152 authorizes municipal police officers to arrest any "disorderly person" who commits such an offense in the presence of the arresting officer. State v. Dangerfield, 171 N.J.446, 460 (2002). "The word 'presence' sums up the requirement that the officer know of the event by the use of his senses." Statev. Morse, 54 N.J.32, 35 (1969) (quoting State v. Smith, 37 N.J.481, 495 (1962)). Here, Dilworth testified that while arriving in his patrol vehicle he personally observed that defendant and Andrews were still wrestling on the ground, and/or in the process of being separated. His testimony was found to be credible, and accordingly we deem it sufficient to establish the "presence" requirement.

1 The case was eventually transferred to the Little Silver Municipal Court after defendant filed a tort claim notice against the Township of Middletown.