STATE OF NEW JERSEY v. MONICA P. SKOTT

NOT FOR PUBLICATION WITHOUT THE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.

MONICA P. SKOTT,

Defendant-Appellant.

__________________________________

November 25, 2014

Submitted July 30, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-41-13.

Pearce Law, L.L.C., attorneys for appellant (Randy T. Pearce and Gregory A. Randazzo, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Joseph W. Torre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following trial de novo on the record of the Wyckoff Township Municipal Court, the Law Division judge convicted defendant Monica P. Skott of harassment, N.J.S.A. 2C:33-4a, and sentenced her to pay a $500 fine, $33 in court costs and a $6 surcharge. She appeals from that conviction. After reviewing the record in light of the single contention advanced on appeal, we affirm.

This action arose out of an early morning dispute between next door neighbors, formerly friends, but who now no longer get along. On garbage pick-up day a few days before the altercation, defendant found a bag of dog feces on the grass next to her driveway that she believed had come out of her neighbor's pail. She picked up the bag and put it on her neighbor's driveway. A few days later, she saw the same bag back on the grass along her driveway and, believing that it was put there by her neighbor, flung it into the neighbors' backyard near their trash cans. The neighbor witnessed defendant throw the bag into her yard and a verbal altercation ensued. When the police declined to come to her house to hear her report, the neighbor swore out a citizen's complaint against defendant for littering and non-disposal of pet waste, later amending it to include additional charges of disorderly conduct and harassment.

After hearing the testimony from family members on both sides, the municipal judge found that the dispute started when the complainant saw defendant "pick up a bag of dog poop and throw it into her yard." The complainant called out of her second story window "I saw that Monica and it's against the law." The judge found that when the complainant "said I saw that Monica, [defendant] just lost it and started to curse with expletives at [complainant], and it . . . went on for some time."1 The judge found that the language defendant used

was particularly disturbing, because it wasn't simply F you, call the F'n police, it was you F'in bitch, go F yourself, call the F'in police, F you, F'you. And so there was a long string of expletives, the kind that would offend the sensibility of anyone who would hear that language.

The judge dismissed the ordinance violation of improper disposal of dog waste at the close of the State's case and the littering charge at the conclusion of trial, finding that there was no littering but only "an attempt to throw out the dog poop." Although finding "unreasonable people on both sides of the fence," the judge found defendant guilty of disorderly conduct2 and harassment. With regard to the intent to harass, the municipal judge found that defendant engaged

in a tirade of expletives that were in fact made for the purpose of harassment. That's the reasonable inference when someone continues to curse at someone, doesn't just say one or two curse words because they're upset, but continues to curse at someone and make[s] it so personal, go F yourself, F you, F you, call the F'in police.

The Law Division judge, reviewing the record de novo, deferred to the credibility findings of the municipal judge and his ability to hear and see the witnesses testify. The judge noted that it is "very clear that the intent [to harass] can be found based upon all the extrinsic evidence." The judge determined that "[d]efendant caused the communication to be made. The purpose in making or causing the communication to be made was to harass. And that comes back down to the findings of the trial judge. And this court does not get to see the testimony, but only read the testimony." The judge concluded that "having read the transcripts," he was convinced that "there was "an intended purpose and that the communication was one made in a manner likely to cause alarm to its intended recipient."

On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division not the municipal court. Id. at 162. As is the case in the Law Division, however, we are not in as good of a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. State v. Locurto, 157 N.J. 463, 470-71, 474 (1999).

Defendant's only contention on this appeal is that her intent to harass cannot be inferred from her response to being "yelled" at and accused of breaking the law by her neighbor. We disagree. A finding of a purpose to harass may be inferred from the evidence, informed by common sense and experience. State v. Hoffman, 149 N.J. 564, 577 (1997). Here, both judges determined that defendant's extended tirade, consisting of a stream of personal, profane invective, went well beyond an ordinary angry reaction to the situation in which she found herself. Both judges scrutinized the "totality of the circumstances" as the Supreme Court has instructed in finding that defendant had violated the harassment statute. H.E.S. v. J.C.S., 175 N.J. 309, 326 (2003). Their careful findings are entitled to our deference. State v. Cerefice, 335 N.J. Super 374, 383 (App. Div. 2000).

Having reviewed the record in light of the contention defendant has advanced on this appeal, we are satisfied that the Law Division judge's finding of defendant's guilt beyond a reasonable doubt could reasonably have been reached "on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162; see Locurto, supra, 157 N.J. at 470-72 (applying the Johnson standard in reviewing a judge's determinations on a suppression motion).

Affirmed.

1 The municipal court judge made detailed credibility findings. Although finding that the protagonists each testified credibly about some things and incredibly about others, the judge dismissed as wholly incredible defendant's assertion that she had not used any foul language in addressing her neighbor.

2 The prosecutor agreed to dismiss this charge in the Law Division. See State in Interest of H.D., 206 N.J. Super. 58,

61 (App. Div. 1985) (finding "no valid statutory authority for prosecutions based upon the public use of coarse or abusive language which does not go beyond offending the sensibilities of a listener").