STATE OF NEW JERSEY v. GABRIEL GATTUSO

NOT FOR PUBLICATION WITHOUT THE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.

GABRIEL GATTUSO,

Defendant-Appellant.

_________________________________________

July 25, 2016

Argued February 22, 2016 Decided

Before Judges Accurso and Suter.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. 01-14.

Gabriel Gattuso, appellant, argued the cause pro se.

Gregory G. Waterston, Assistant Prosecutor argued the cause for respondent (John T. Lenahan, Salem County Prosecutor, attorney; (Mr. Waterston, on the brief).

PER CURIAM

After not prevailing on a de novo review of the municipal court record in the Law Division, defendant Gabriel R. Gattuso appeals from his convictions for harassment, N.J.S.A. 2C:33-4, and a noise violation, Pennsville Township Ordinance 8.3-2. We affirm for the reasons set forth by Judge Gary D. Wodlinger in his written opinion.

Around noon on September 14, 2013, a patrolman of the Pennsville Police Department was called to a duplex to investigate a complaint made by a neighbor regarding a threatening statement made to him and about loud music. The patrolman parked in the driveway about twenty-five feet from the house and immediately heard loud music coming from inside the second floor apartment where defendant was living. After further investigation, the patrolman asked defendant to lower the music's volume, but defendant became argumentative by insisting on knowing the decibel reading of the sound. When defendant would not turn down his music, he was arrested for violation of the local Pennsville noise ordinance.

Two days later, a neighbor downstairs (complainant) filed a complaint against defendant for harassment, N.J.S.A. 2C:33-4. The complaint alleged defendant played his radio loudly at inconvenient hours and also yelled at the complainant, as well as his teenage son, that complainant was a "pedophile" who raped his own children. Defendant yelled "it's daddy rape time" from his upstairs apartment so that the complainant could hear it. Defendant also loudly read off statistics about child rapists within earshot of complainant's children, who then were ages seventeen and fourteen.

After back-to-back municipal trials on these charges in January 2014, defendant was convicted of both charges and sentenced to fines and costs in separate amounts for each charge. The judge also issued a no-contact order prohibiting defendant from contacting the complainant and his children, all of whom by then were no longer residing at the duplex.

Defendant's appeal of his convictions to the Superior Court were heard de novo by Judge Wodlinger, who issued a comprehensive written opinion on June 16, 2014 that affirmed the convictions. In rejecting defendant's claim that the excessive noise charge lacked probable cause, the judge noted the patrolman testified he heard loud noise when he arrived on the scene from at least twenty-five feet away. This gave the patrolman "reasonable belief" that defendant had committed the violation of excessive noise under the ordinance, which precluded the playing of sound "in such manner as to disturb the peace, quiet and comfort of neighboring inhabitants or with louder volume than is necessary for convenient hearing for persons who are in the room . . . ."

With respect to the harassment complaint, the judge found there was probable cause because the complainant had testified about communications with that neighbor occurring over a period of more than a year that, because of their nature, had prompted an investigation by the Division of Child Protection and Permanency and caused his children to fear the defendant. Also the complaint was brought by a citizen eyewitness whose identity was known, such that "veracity [was] presumed." The complainant "was . . . an eyewitness to the incidents in question [and] personally gave a statement under oath alleging that defendant committed these acts." As such, the court's Deputy Administrator was correct in finding probable cause on the harassment complaint.

Judge Wodlinger found the charges were established by proof beyond a reasonable doubt. On the excessive noise complaint, the municipal judge had credited the testimony of the officer and the complainant. The music could be heard from twenty-five feet away and defendant refused to turn it down. Judge Wodlinger found the defendant "was playing his music at a volume that was louder than necessary and did so to the detriment of his neighbor."

With respect to the harassment charge, the Law Division judge found the statements made about the complainant to have "no other purpose . . . than to annoy and torment [the complainant] and his family." The "offensive" statements intruded into their reasonable expectation of privacy because they were subjected to these statements within the privacy of their own home. These statements had been occurring over a year and caused the children to fear the defendant.

Judge Wodlinger rejected defendant's argument that the convictions were based on hearsay because they were based on the testimony of the witnesses. The testimony was based on events that the witnesses had experienced personally. The court found no error in the amendment of the excessive noise charge to reflect the current version of the Township ordinance. There was no question defendant was aware he was charged with an excessive noise violation.

On appeal, defendant raises the following issues

POINT 1 APPELLANT WAS SUBJECTED TO MALICIOUS SELECTIVE PROSECUTION OUTSIDE OF THE DUE PROCESS OF LAW, WITH A MOTIVE OF INTENT AND REVENGE FOR ACTIONS I TOOK WITHIN THE DUE COURSE AND PROCESS OF LAW. I BELIEVE THIS SELECTIVE PROSECUTION, WITH MALICE AFORETHOUGHT, TOOK PLACE IN BOTH THE MUNICIPAL COURT OF PENNSVILLE TOWNSHIP AND THE SUPERIOR COURT OF SALEM COUNTY, CRIMINAL DIVISION

POINT II THE CONSTITUTIONALITY (AMENDMENTS 1 & 8) OF PENNSVILLE MUNICIPAL ORDINANCE 8.3-2

POINT III MISTRIAL FOR MY ORIGINAL MUNICIPAL COURT TRIAL DUE TO DENIAL OF BASIC CONSTITUTIONAL RIGHTS (AMENDMENTS 4, 5, 6, 7 & 8), AND DUE PROCESS OF LAW VIA: PROSECUTION, DISCOVERY, PROCEDURE, PERJURY, AND LEGAL AUTHORITY FOR SUMMONS #1705 S 2013 0000682 (S-2013-000682)

After reviewing the trial transcripts, the transcript from the de novo hearing, Judge Wodlinger's written opinion and the governing law, defendant has provided us no reason to disturb the factual findings or legal conclusions therein.

We comment briefly on the standard that informs our analysis. On appeal, we "consider only the action of the Law Division and not that of 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)). Under Rule 3:23-8(a)(2), the Law Division makes independent findings of fact and conclusions of law de novo, based on the record from the municipal court. See State v. States, 44 N.J. 285, 293 (1965). On appeal, we determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Our review of legal determinations is plenary. See State v. Handy, 206 N.J. 39, 45 (2011); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant's constitutional challenge relates in part to his argument that there was no probable cause for the charges. "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Moore, 181 N.J.40, 46 (2004) (alterations in original) (quoting Schneider v. Simonini, 163 N.J.336, 361 (2000) cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)).

Judge Wodlinger properly concluded there was probable cause for the excessive noise complaint based on the officer's testimony that he heard the noise and that defendant, although given the opportunity to lower the music's volume, would not do so. Similarly, the judge found from the certified statement of the complainant, which said defendant made offensive statements over the course of a year that were intended to harass, that there was a reasonable belief the defendant had committed harassment under N.J.S.A.2C:33-4. When an identified citizen observes and reports unlawful conduct, the informant is assumed to have veracity and the information reliable. State v. Basil, 202 N.J.570, 586 (2010) (citing State v. Stovall, 170 N.J.346, 362 (2002)). Here, the complainant's knowledge of the events was firsthand. See id. at 587. A judicial officer would therefore be allowed to rely on the complainant's assertions in determining probable cause.

Judge Wodlinger then concluded from the evidence at the trials that there was proof of both charges. Based on the testimony of the patrolman and the neighbor, a reasonable fact-finder could conclude beyond a reasonable doubt that defendant was in control of and listening to music "with louder volume than is necessary for convenient hearing . . . ." Pennsville Township, N.J., Ordinance 8:3-2. Similarly, regarding the harassment charge, the record reflected that the offensive statements occurred frequently during all hours of the night and with an evident purpose to harass, such that Judge Wodlinger had sufficient evidence to conclude defendant had committed harassment, N.J.S.A. 2C:33-4.

Finally, the record supports Judge Wodlinger's rejection of defendant's claim that a minor error on the citation should have resulted in the dismissal of the excessive noise charge. Although the citation did list former ordinance 8.3-7, the citation also listed the offense as "excessive noise" and the municipal judge informed defendant before trial he was being tried on ordinance 8.3-2.

We reject defendant's remaining arguments, some newly expressed on appeal, as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).