State v. KIM E. MAHONEY

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NOT FOR PUBLICATION WITHOUT THE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.

KIM E. MAHONEY,

Defendant-Appellant.

November 5, 2014

 

Submitted October 22, 2014 - Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-075.

Kim E. Mahoney, appellant pro se.

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Following a municipal court trial and a trial de novo in the Law Division, defendant Kim E. Mahoney was found guilty of the disorderly persons offense of criminal trespass, N.J.S.A. 2C:18-3(a). She was sentenced to a pay a $250 fine, and placed on probation for two years. After reviewing the record in light of the contentions advanced on appeal, we affirm.

We discern the following facts from the record. The victim, D.C.,1 suffers from dementia, and resides in a secure licensed health care facility (the facility). In 2010, D.C. was adjudicated incapacitated and unfit and unable to govern himself and manage his affairs. Accordingly the Superior Court, Probate Part, appointed a guardian of his person and estate.

Defendant previously worked with D.C. and in early 2011 she visited D.C. at the facility along with another former co-worker, Henry Arteaga. By all accounts the first two visits were uneventful. However, after the second or third visit, the guardian determined that it was inappropriate for defendant to visit D.C. Consequently the guardian requested that the facility no longer permit defendant to have access to D.C. The guardian also spoke with defendant directly, both in person and by telephone, and advised her that she was to have no further contact or communication with D.C.

Despite this admonition, defendant entered the facility to see D.C. on April 20, 2011. A social worker at the facility observed defendant there, and reminded defendant that the guardian had left instructions that she was not permitted to visit. The Chester Township police were summoned, and Lt. Thomas Schmieder responded. Schmieder spoke with defendant for approximately twenty minutes, and confirmed that she had previously been informed that she was not to enter the facility. Defendant responded that she entered the facility behind two other guests, and that she did not sign the register book because she knew she was not allowed there. Schmieder informed defendant that the guardian did not wish to pursue criminal charges at that time. However, Schmieder made clear to defendant that she was not to have further contact with D.C., and that she would be charged with criminal trespass if she returned.

Defendant nonetheless returned to the facility on May 29, 2011, and went straight to D.C.'s room. After being spotted by a nurse's aide, defendant signed the register using a fictitious name before exiting the facility. The guardian was notified, and Detective Anthony DaCunza of the Chester Township Police Department was assigned to investigate. DaCunza contacted defendant, and, after being administered Miranda2 warnings, defendant gave a recorded statement admitting that she was at the facility on May 29, 2011. Defendant was then charged with criminal trespass as a result of her unlicensed entry on May 29. Additionally, on June 13, 2011, the facility sent defendant a letter informing her that she was not to go there for any reason and that she was not permitted to contact any of the staff or residents of the facility.

In addition to the visits, defendant sent D.C. several letters that were given to the guardian according to the facility's procedure. In these letters, introduced in evidence by the State, defendant expressed her awareness that she was not permitted to visit D.C. at the facility and that she risked arrest by doing so.

Defendant elected not to testify. She called Arteaga, who accompanied defendant on her initial visits. Arteaga was aware that D.C. suffered from dementia. Notably, defendant told Arteaga that she visited the facility in April and that the police had then cautioned her not to return.

Presented with this evidence, the municipal court judge found defendant guilty of criminal trespass. The judge later supplemented his detailed oral decision to explicitly state that

the [c]ourt's decision certainly makes clear that the [c]ourt found the State's witnesses to be forthright, unequivocal and extremely credible. The defendant's own words, as set forth on the tape in evidence, confirm the testimony of the State's witnesses.

Defendant appealed to the Law Division which found, based on the record developed before the municipal court, that there was ample evidence to convict defendant of the charge. Defendant now appeals from the May 31, 2013 Law Division judgment, raising the following arguments

JUDGE TROXELL SHOULD HAVE DISQUALIFIED/RECUSED HIMSELF IN THE CHESTER MUNICIPAL COURT PROCEEDINGS

DEFENDANT WAS DENIED HER RIGHTS TO A FAIR TRIAL BECAUSE SHE WAS UNABLE TO DEFEND HERSELF AND HER TRIAL WAS DELAYED ONE YEAR

THE SENTENCE IMPOSED, THE LENGTH OF PROBATION, AND THE AMOUNT OF FINES IS EXCESSIVE

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT IS GUILTY OF CRIMINAL TRESPASS UNDER N.J.S.A. 2C:18-3A

JUDGE TROXELL OF THE MUNICIPAL COURT, JUDGE MINKOWITZ OF THE LAW DIVISION, AND THE STATE RELIED ON HEARSAY IN RENDERING THEIR DECISIONS

We start with well-established principles. 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. Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "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). 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)), aff'd 206 N.J. 39 (2011).

Guided by these principles, we first consider defendant's argument, set forth in Point IV of her brief, that the State did not prove beyond a reasonable doubt that she was guilty of criminal trespass. Under N.J.S.A.2C:18-3(a), "[a] person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof, or in or upon utility company property." N.J.S.A.2C:18-3(a).

Defendant contends that she had a reasonable belief that she was licensed and privileged to be at the facility. She also focuses on the purported lack of any effective notice to the contrary, arguing that the exact details of the facility's visitation directive were not made clear to her until she received the facility's June 13, 2013 letter, after she had already been charged. We disagree.

Even if her name did not appear on a formal list of those excluded from entering the facility to visit D.C., which is unlikely based on the corroborative testimony of the guardian and the facility's staff, defendant clearly had knowledge sufficient to negate her argument of license or privilege to be on the property. The record reveals numerous instances where defendant was informed that she was not permitted to visit the facility and that she would be arrested if she did not adhere to those instructions. The guardian advised defendant personally, as did the facility staff. The social worker reminded defendant of this prohibition when defendant returned on April 20, 2011. Each witness who testified confirmed that defendant was aware that she was trespassing. Notably, regarding defendant's April 20 visit, Lieutenant Schmieder stated: "[i]t was absolutely clear to her that day [that she was not allowed to visit]. And she told me she understood that she would not return to [the facility]. She . . . promised me she would not return there."

Additionally, on numerous occasions, defendant herself acknowledged that she was not permitted to visit the facility and that she would be arrested if she did so. Written documentation of her knowledge that she was trespassing, is found in her multiple letters. For example, in defendant's April 27, 2011 letter to D.C. she wrote

"I just want you to understand why I'm not there on a regular basis, because [the guardian] won't allow me to even see you without being arrested. . . . [r]emember, I can't call you or visit you, or I will be arrested, so you can either call me or have [your daughter] call me."

Defendant's May 10, 2011 letter also states: "I just wanted you to know why I was not visiting, because [the guardian] went to the police station and told the police if I should show up again, I would be arrested or if I called you. . . ." Further, defendant admitted that she knew she was not allowed to be at the facility during her recorded interview with Detective DaCunza.

Based on our review of the complete record, it is clear that defendant was aware that she was trespassing when she entered the facility on May 29, 2011. The trial court's findings are amply supported by substantial credible evidence in the record. Defendant's knowledge of the fact that she was not permitted to be on the premises and her decision to visit the facility anyway resulted in a violation of N.J.S.A. 2C:18-3(a).

We next consider defendant's contention, raised in Point III of her brief, that her sentence was excessive. It is well-settled that trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J.494, 500 (2005). When the trial court has applied correct legal principles and sentenced in accordance with the guidelines, we should not overturn the sentence unless it is so clearly unreasonable as to shock the judicial conscience. Id. at 501 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obligated to affirm. State v. Cassady, 198 N.J. 165, 180-81 (2009), certif. denied, 213 N.J. 539 (2013).

Here the court concluded that the aggravating and mitigating factors were in equipoise, and imposed a probationary sentence and a modest fine. We are satisfied that the court acted well within its discretion in identifying and weighing the aggravating and mitigating factors supported by the evidence, and imposed a sentence within the permissible range for the offense. State v. Bieniek, 200 N.J.601, 608 (2010). As the court applied correct legal principles, and the sentence is amply supported by the record and does not shock our judicial conscience, we discern no basis to disturb it. Roth, supra, 95 N.J.at 363-64.

Defendant's remaining arguments, contained in Points I, II, and V of her brief, are clearly without merit and do not warrant further discussion. R.2:11-3(e)(2). Additionally, none of these points were raised before the municipal court or the Law Division, and accordingly we decline to consider them. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v.Galicia, 210 N.J.364, 383 (2012). "[A]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Id.at 386. Reversal would be warranted only if we find plain error, R.2:10-2, "of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." State v. McGuire, 419 N.J.Super. 88, 142-43 (App. Div.), certif. denied, 208 N.J. 335 (2011). Even were we to consider these claimed errors, we conclude that, both singly and cumulatively, they fail to rise to the level of plain error.

Affirmed.

1 We use initials to safeguard the identity of the incapacitated victim.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).