STATE OF NEW JERSEY v. JONATHAN LEMKIN

NOT FOR PUBLICATION WITHOUT THE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.

JONATHAN LEMKIN,

Defendant-Appellant.

__________________________________

July 2, 2014

Submitted April 2, 2014 Decided

Before Judges Fuentes, Simonelli and Haas.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-14-13.

Arthur G. Margeotes, attorney for appellant (Patrick P. Toscano, Jr., on the brief).

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

PER CURIAM

Defendant Jonathan Lemkin was a former police officer in the Borough of Cliffside Park. After a four-day bench trial in municipal court, defendant was convicted of installing emergency flashing lights on his own private car in violation of N.J.S.A. 39:3-54, and two counts of tampering with public documents, in violation of N.J.S.A. 2C:28-7a(2), a disorderly persons offense. After merging the tampering convictions, the municipal court sentenced defendant to pay the mandatory fines and fees, and ordered the forfeiture of his position as a police officer, as required under N.J.S.A. 2C:51-2d.

Defendant thereafter sought de novo review of his conviction and sentence before the Law Division. After reviewing anew the record developed before the municipal court, giving due deference to the municipal court judge's credibility findings where warranted, the Law Division found defendant guilty on these offenses, imposed the same mandatory fines and penalties, and entered an order of forfeiture of defendant's public position of police officer for the Borough of Cliffside Park.

Defendant now appeals the judgment of the Law Division to this court. We affirm. We discern the following facts from the record reviewed by the Law Division.

On September 16, 2011, the Chief of Police of the Borough of Cliffside Park asked Captains Richard Gaito and Michael Russo to hand-deliver a letter1 to defendant at his residence. Defendant was on "state disability" leave from the police department at the time.2 Captain Gaito rang defendant's doorbell a number of times without response. Concluding defendant was not at home, the two captains decided to return to their car.

As he walked toward his car, Captain Gaito saw "a black what to me is an unmarked police car parked at the dead end on the south side of [defendant's street]." According to Captain Gaito, the vehicle was "[a] half a block maybe on the opposite side" of defendant's residence. He approached the vehicle and radioed the license plate number to headquarters to determine who owned the car. According to the police dispatcher, the vehicle was not registered and there was no owner on file. This response was also consistent with the vehicle being an unmarked police car.

When asked to describe what made the vehicle appear to be an unmarked police car, Captain Gaito stated: "It had [emergency] lights on the top deck . . . the front of the car. . . . [t]hat you would see typically in [an] unmarked police car." Similar lights were in the rear of the car on "the back deck." The car was a Ford Crown Victoria, which is also "consistent" with the kind of cars used by police departments as unmarked police cars. Generally, the vehicle had dark tainted windows, its identification number on the dashboard was partially obscured by a bubble gum wrapper, and did not display an inspection sticker on the front window.

When Captain Gaito examined the car's license plate number more closely, it became apparent it had been altered. What looked like the number zero was actually an "8" and what first appeared to be the letter "P" was actually an "R." The same alterations had been made to both front and rear plates. Captain Gaito characterized these alterations as "meticulously done" because "[t]he front and the rear [plates were] exactly the same." When the actual license plate numbers were run through the Motor Vehicle Commission database, Captains Gaito and Russo discovered defendant was the registered owner of the car. Defendant was not authorized to operate or use an unmarked police car.3 The vehicle was impounded and transported to a police storage facility.

The case was transferred to the Internal Affairs Unit of the Cliffside Park Police Department and assigned for formal investigation to Detective Sergeant Sean MacKay. Captain Gaito telephoned defendant that same day and asked him "to come down to the police station." Defendant agreed and met with Captain Gaito and Sergeant MacKay later that same afternoon. Sergeant MacKay determined that the altered license plate had been examined by computerized means by police departments of various municipalities in Bergen County on four separate occasions before September 16, 2011, the day the matter came to light in Cliffside Park.

After waiving his rights under Miranda,4 defendant consented to a search of his vehicle and produced his vehicle registration, which indicated he owned a black, four-door 2003 Ford Crown Victoria with the unaltered license plate number. In response to Captain Gaito's questions, defendant acknowledged he installed the emergency lights and purposely made the car appear to be an unmarked police car.5 Defendant denied, however, altering the car's license plates or being aware that the vehicle's plates had been altered.6 He also claimed to be unaware of anyone who would have the motive and/or capacity to alter the license plates.

Captain Gaito testified that defendant claimed he intentionally altered his private vehicle to make it appear to be an unmarked police car "to deter further criminal activity in that area." According to Captain Gaito, he was not aware of any criminal activity in defendant's neighborhood before September 16, 2011, specifically involving criminal mischief or vandalism of automobiles. Defendant also had not reported being the victim of vandalism or having any difficulties with safety issues in his neighborhood.

Against this evidence, defendant moved to dismiss the charges against him or alternatively for a judgment of acquittal arguing the State had failed to establish his guilt beyond a reasonable doubt. After the municipal court judge denied the motion, defendant called Captain Russo as a witness. Defense counsel asked Captain Russo about a highly publicized dispute he had had with a certain individual in the summer of 2010. Captain Russo testified he believed defendant was "giving [to this individual] information about me and talking about a matter that he shouldn't have been discussing with him, departmental matter."

Captain Russo also sought to undermine defendant's admission into the Police Benevolent Association (PBA) by filing a grievance against defendant. Defendant was denied admission after a vote of the PBA members. Captain Russo testified defendant sought to meet with him and the Borough Administrator to resolve their grievances. Captain Russo testified they were able to reach an amicable conclusion to the matter and defendant was thereafter admitted into the PBA.

Because all these seemingly irrelevant matters occurred before September 16, 2011, defense counsel argued that Captain Russo harbored animosity towards defendant. Defense counsel sought to question the viability of the charges and subsequent investigation as tainted by Captain Russo's bias and alleged motive to fabricate evidence against defendant.

Defendant also called retired Cliffside Park Police Captain Anthony Frato. He testified of being unaware of any procedures requiring two captains to serve a letter upon one officer. Captain Frato conceded, however, that the Chief of Police had the discretion to order his captains to act in this capacity, especially in matters involving possible personnel action.

Defendant testified in his own defense. He admitted to owning the Crown Victoria at issue. He admitted to spending his own money to alter the vehicle to appear to be an unmarked police car by installing emergency lights. He admitted he did these things without authorization from anyone in the Cliffside Park Police Department. Defendant denied altering the license plates and insinuated that it could have occurred while the car was being painted at a Maaco repair shop. He left the car with Maaco for two weeks in August 2011 while on vacation. He fractured a bone on his dominant right hand before September 16, 2011, and the hand was in a cast at the time.

Against this evidence, the Law Division found the State presented overwhelming circumstantial evidence supporting defendant's guilt beyond a reasonable doubt. Defendant now appeals generally attacking the sufficiency of the evidence presented by the State.7

We reject this argument. Although the Law Division Judge did not articulate with particularity the legal elements of each offense, and thereafter applied the facts to those elements, as expected under our long-established analytical approach, we are satisfied the evidence establishes defendant's guilt beyond a reasonable doubt.

On appeal from a Law Division decision, our review is generally limited to the action of the Law Division and not the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). We look only to determine whether the record contains sufficient credible evidence to uphold the findings of the Law Division. State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012), certif. granted, 213 N.J. 45 (2013); State v. Segars, 172 N.J. 481, 488 (2002). An appellate court "do[es] not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). However, we afford no special deference to a trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Law Division found defendant guilty of installing emergency flashing lights on his own private car in violation of N.J.S.A. 39:3-54, which prohibits "flashing lights" on motor vehicles unless otherwise approved by the Director of the Division of Motor Vehicles. Defendant admits to installing flashing lights in his vehicle so that it resembles an undercover police car. Accordingly, the State has met its burden of proof on this Title 39 offense.

The court also convicted defendant on two counts of tampering with public documents, in violation of N.J.S.A. 2C:28-7a(2), which defines tampering with public records as:

(1) [k]nowingly mak[ing] a false entry in, or false alteration of, any record, document or thing belonging to, or received or kept by, the government for information or record, or required by law to be kept by others for information of the government;

[or]

(2) [m]aking, present[ing], offer[ing] for filing, or us[ing] any record, document or thing knowing it to be false, and with purpose that it be taken as a genuine part of information or records referred to in paragraph (1); . . . .

Although defendant denied altering the car's license plates, the Law Division Judge rejected his testimony as not credible. Specifically, the court noted defendant spent his funds to intentionally alter the vehicle to appear as an unmarked police car. There is overwhelming circumstantial evidence to support the trial court's finding of guilt on this charge. Defendant's remaining arguments attacking certain rulings made by the municipal court are not cognizable in this appeal and do not merit any further discussion. R. 2:11-3(e)(2).

Affirmed.

1 The content of the letter is not relevant to the issues raised in the appeal. Suffice it to say that Captain Russo testified it was an established practice in the police department for the Chief to dispatch officers holding a superior rank to "deliver official mail to an officer."

2 As made clear by Captain Gaito, however, despite his disability status, defendant remained subject to the police department's "supervision" as a police officer.

3 Without any prompting by the prosecutor or the court, defense counsel on his own initiative stipulated: "that it's not a defense in this case, nor would it ever be, that there was some sort of contact between Officer Lemkin and this agency or any other agency whereby the defense would be that the car was being used for an official police business for undercover reasons."

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

5 Although Captain Gaito was not personally aware if there were any established procedures for officers "to have such instruments in their personal vehicles," once again defense counsel conceded (on his own initiative) that "there are procedures for putting lights on a personal vehicle, and you have to do certain things under the law to do that, . . . ." Defense counsel further stipulated these procedures require, at a minimum, "get[ting] permission from the chief and a permit . . . or both."

6 Sergeant MacKay testified that, as a police officer, defendant had access to several search engines through which he could determine whether a particular license plate was registered.

7 Appellate counsel's letter brief violates the requirements of Rule 2:6-2(b), by raising legal arguments that do not distinctly and appropriately identify the issues raised by point headings. Appellate practice rules are intended to facilitate the review of the trial court's decision. We caution counsel that violations of these rules are subject to sanctions. R. 2:9-9.