STATE OF NEW JERSEY v. MARK TILSON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2995-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK TILSON,
Defendant-Appellant.
________________________________
Argued telephonically April 9, 2018 –
Decided April 23, 2018
Before Judges Nugent, Currier, and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Municipal Appeal
No. 5070.
John Vincent Saykanic argued the cause for
appellant.
Mark A. Festa, Assistant Prosecutor, argued
the cause for respondent (Camelia M. Valdes,
Passaic County Prosecutor, attorney; Tom
Dominic Osadnik, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant, Mark Tilson, appeals his conviction of disorderly
persons simple assault and his sentence of one year probation and
a suspended sixty-day jail term. On appeal, defendant seeks a
reversal of his conviction and dismissal of the assault charge;
or, alternatively, a remand to the Law Division for a new de novo
trial. He contends his conviction should be reversed and the
charge dismissed because he was denied a speedy trial; and, when
he was finally brought to trial, the State did not prove him guilty
beyond a reasonable doubt. He also contends the municipal court
judge improperly permitted the victim to prosecute the complaint
and then question him about prior bad acts. Alternatively,
defendant argues the case should be remanded to the Law Division
because the court did not view a video during the trial de novo.
We reject his arguments and affirm his conviction and sentence.
In June 2012, police charged defendant on a complaint-summons
with disorderly persons simple assault,
N.J.S.A. 2C:12-1(a)(1),
for allegedly punching the victim in the face. Nearly a year
later, in May 2013, defendant filed a cross-complaint against the
victim, alleging simple assault,
N.J.S.A. 2C:12-1(a)(1), and
harassment,
N.J.S.A. 2C:33-4(a). The charges in the complaint and
cross-complaint were tried in Paterson Municipal Court on
September 24, 2013. The victim, who had no attorney, prosecuted
the complaint against defendant and defended herself against the
charges in the cross-complaint. An attorney represented defendant
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and acted as private prosecutor on defendant's cross-complaint
against the victim.
The municipal court judge found the victim not guilty. The
judge found defendant guilty and imposed a probationary sentence
and a suspended jail term. Defendant appealed to the Law Division,
which found him guilty and imposed the same sentence the municipal
court judge had imposed. This appeal followed.
Defendant, the victim, and one other witness testified at the
municipal court trial. According to their testimony, the incident
giving rise to the complaint and cross-complaints unfolded during
a June afternoon in Passaic Community College's lunchroom, where
defendant was using the Wi-Fi system with his computer. He was
sitting at a table near a lunchroom wall. The victim and her
mother were sitting at the table across from defendant.
According to defendant, the victim and her mother were
speaking loudly, so he asked them to be quiet. The victim stood
up and said something rude to defendant, to which he responded.
A verbal altercation ensued. Defendant testified the victim then
spit on him twice. Worried about germs and diseases that might
transfer to him from her saliva, and acting to defend himself,
defendant punched the victim in the face. After he punched her,
she spit on him a third time and picked up a chair and threatened
3 A-2995-16T1
him. He picked up another chair. They both put their chairs down
without striking one another.
Defendant played a video purporting to depict the incident.
He stopped and started it, narrating as he played it, and then he
played it from beginning to end for the court.
The victim's attempts to cross-examine defendant were feeble.
The judge explained to her several times that cross-examination
was confined to asking questions, not testifying or making comments
on defendant's testimony. The victim asked a number of questions
to which defendant's attorney objected. The judge sustained a
majority of these objections. Defendant did not answer other
questions. Some of the questions implied defendant had either
been convicted of other charges or had other charges pending.
The victim testified and told a different story. She had
gone to the college, accompanied by her mother, to request a
transcript from a recent course she had taken. She had seen
defendant at the college on previous occasions when he had been
escorted out for downloading videos.
As the victim and her mother sat at a table next to defendant
and conversed in normal tones, defendant told them to shut up.
The victim replied, "excuse me you don't say that to us like that
because [we] are not talking in a loud voice." He responded by
calling her mother a nasty name in Spanish. She said "listen if
4 A-2995-16T1
you continue this I'm going to go to the guard right now in the
corner and tell him to get [you] out of here because [you were]
yelling." She got up to get the guard, and defendant punched her,
causing her lip to bleed. She had to go to the hospital. A guard
came to the tables, and defendant lifted a chair to attack the
victim, but the guard took it from him.
The victim denied ever approaching or spitting on defendant.
She also denied the video played by defendant depicted what he
said it depicted. According to the victim, the video was of poor
quality, did not show much of anything, and did not show her
spitting on defendant.
The victim called a security guard as a witness at the
municipal court trial. The guard arrived after the altercation
had occurred and saw the victim bleeding from the mouth. He
testified he made the video defendant had played for the court.
He acknowledged the cafeteria was open to the public but also
explained defendant had been escorted off the premises "every once
in a while for . . . being rude."
The municipal court judge found defendant "not . . . entirely
credible," and found the victim "to be the more credible witness."
The judge disbelieved defendant's testimony and found the video
did not support it. The judge noted the video did not show the
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victim confront defendant. The judge also found it difficult to
believe the victim spit on defendant from where she was standing.
The judge found defendant guilty of simple assault and found
the victim not guilty. The judge sentenced defendant to a one-
year probationary term during which he was to complete a program
of anger management counseling. The judge also sentenced defendant
to sixty days in county jail, which she suspended provided he
completed probation. Lastly, the judge imposed fines, penalties,
and assessments.
Defendant appealed to the Law Division. During the trial de
novo, the court stated it would "not consider any of [the improper]
questions and answers that . . . appear in the [municipal court]
transcript." The court found defendant guilty. The court noted
defendant had admitted punching the victim in the face and also
noted "a person may not use more force than that which he
reasonably believes is necessary to repel the attack." The court
found the victim's testimony credible because "[h]er version of
the incident [was] logical and believable." In contrast, the
court found defendant's testimony inconsistent and also found
defendant had no legitimate reason "[t]o punch a woman much
smaller" than him. The court also found defendant punched the
victim as a result of a verbal altercation. The court imposed the
same sentence the municipal court judge had imposed.
6 A-2995-16T1
On appeal, defendant makes the following arguments:
POINT I
THE DELAY OF MORE THAN FIFTEEN MONTHS IN THE
PROSECUTION OF DEFENDANT TILSON'S SIMPLE
ASSAULT TRIAL DEPRIVED DEFENDANT OF HIS
FEDERAL AND STATE SPEEDY TRIAL RIGHTS.
POINT II
DEFENDANT TILSON WAS DEPRIVED OF HIS
CONSTITUTIONAL AND STATE RIGHT TO A FAIR TRIAL
DUE TO THE IMPROPER ADMISSION OF PRIOR "BAD
ACT" TESTIMONY AND INFERENCES; THE MUNICIPAL
COURT JUDGE IMPROPERLY PERMITTED THE CROSS-
COMPLAINANT TO QUESTION TILSON ABOUT: 1)
WHETHER HE HAD EVER BEEN ACCUSED OF ASSAULT;
2) WHETHER HE HAD EVER BEEN IN JAIL; 3) WHETHER
HE HAD A DISORDERLY PERSONS CONVICTION (TO
ADVERSELY AFFECT HIS CREDIBILITY); 4) WHETHER
HE HAD ANY CASES PENDING IN PATERSON MUNICIPAL
COURT WHICH HAD NOT BEEN RESOLVED; 5) WHETHER
HE HAD BEEN ESCORTED OUT OF THE COLLEGE
PREVIOUSLY; AND 6) ADMITTED TESTIMONY FROM A
SECURITY OFFICER THAT TILSON "GETS ESCORTED
OUT EVERY ONCE IN A WHILE FOR . . . BEING
RUDE"; THE LAW DIVISION ERRED IN NOT REVERSING
THE CONVICTION BASED UPON THESE IMPROPRIETIES.
POINT III
THE COURT BELOW ERRED IN FINDING THE DEFENDANT
GUILTY DE NOVO OF ASSAULT AS THE STATE FAILED
TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE
DOUBT.
POINT IV
THE CONVICTION OF TILSON IS VOID AB INITIO
BECAUSE THE REQUIREMENTS OF STATE v. STORM,
141 N.J. 245 (1995) WERE NOT MET.
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POINT V
THE CONVICTION MUST BE REVERSED OR, AT THE
VERY LEAST, THE MATTER REMANDED TO THE LAW
DIVISION, AS THE LAW DIVISION JUDGE DID NOT
VIEW THE VIDEO OF THE INCIDENT.
Defendant's speedy trial argument is unsupported by a proper
record. Rule 2:6-1(a)(1) requires an appellant to include in the
appendix certain enumerated documents as well as "such other parts
of the record . . . as are essential to the proper consideration
of the issues." When considering whether a defendant has been
deprived of the right to a speedy trial, courts generally consider
four factors: the "length of delay, the reason for the delay, the
defendant's assertion of the right and prejudice to the defendant."
State v. Szima,
70 N.J. 196, 201 (1976). Here, defendant has not
provided a record as to when or how many times the trial was
scheduled, why it was adjourned on each occasion, or if he first
raised the issue before trial.
The complaint was filed on June 7, 2012, and the municipal
court trial took place on September 24, 2013. Defendant's first
reference to his assertion of his right to a speedy trial occurred
as the municipal court trial was ready to begin. Defense counsel
informed the court defendant had asked him "to move to dismiss
under the grounds of speedy trial." Counsel further informed the
court, "[defendant has] indicated to me that he's requested that
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the matter be tried in a speedy fashion and it had not been."
Defense counsel also candidly told the court he had only been
involved in the matter since June or July 2013, shortly after
defendant filed the cross-complaints in May 2013. Defendant did
not explain how he was prejudiced by the delay.
The oral motion defendant made as the trial de novo was about
to begin was equally vague and unsupported. Defense counsel
stated:
Judge, . . . at the outset of the trial and
again, [defendant] had asked me to make a
speedy trial motion. I did indicate that the
matter was some [fifteen] months old that I
was assigned . . . just a couple of months
before we tried the case and that [defendant],
I had indicated, had repeatedly asked that the
case be tried.
In denying the motion, the court noted "[n]o reason for the
delay is reflected in the record except the defendant was in court
a couple of times" and further noted "defendant failed to file the
cross-complaint against the complaining witness [until] May 22nd,
2013." The court determined defendant demonstrated no prejudice
occasioned by the delay. In view of the scant record and
defendant's belated application and skeletal argument, we cannot
conclude the court's denial of defendant's oral speedy trial motion
was "clearly erroneous." State v. Merlino,
153 N.J. Super. 12,
17 (App. Div. 1977).
9 A-2995-16T1
Equally unavailing is defendant's argument the State did not
prove his guilt beyond a reasonable doubt. The argument boils
down to a disagreement with the courts' credibility
determinations. We generally defer "to trial courts' credibility
findings that are often influenced by matters such as observations
of the character and demeanor of witnesses and common human
experience that are not transmitted by the record." State v.
Locurto,
157 N.J. 463, 474 (1999). And "[u]nder 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." Ibid. No such error occurred here. Based on the
victim's testimony, the findings of the Law Division "could
reasonably have been reached on sufficient credible evidence
present in the record." State v. Johnson,
42 N.J. 146, 162 (1964).
We need make no further inquiry. Ibid.
We have considered defendant's remaining arguments in light
of the record and the parties' submissions and found them to lack
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We add only the following brief comments.
Defendant argues the municipal court judge admitted improper
"bad acts" evidence. In the Law Division, however, the court
stated expressly it would not consider such evidence. When a
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party appeals from a de novo trial on the record, we generally
"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)).
And this was a bench trial, not a jury trial. Thus, the possible
prejudicial impact of such evidence is of less concern. See In
re Commitment of A.X.D.,
370 N.J. Super. 198, 202-03 (App. Div.
2004).
Defendant not only failed to raise his argument concerning
State v. Storm,
141 N.J. 245 (1995) — in which the Supreme Court
held that "whenever an attorney for a private party applies to
prosecute a complaint in the municipal court, the court should
determine whether to permit the attorney to proceed," id. at 248
— at the municipal court trial, he agreed to permit his attorney
to prosecute the complaints he had filed. He has cited no
authority that either suggests the Storm doctrine should be
extended to pro se litigants or holds that if a pro se litigant
prosecutes a municipal court charge, the charge must be dismissed.
In addition, defendant has demonstrated no prejudice occasioned
by the victim prosecuting the complaint filed on her behalf. We
discern no such prejudice, particularly in view of defendant's
representation by a seasoned trial attorney.
11 A-2995-16T1
Last, defendant claims the case should be remanded to the Law
Division because the court did not consider his video. But the
video had not been marked as an exhibit or admitted into evidence
at the municipal court trial. Significantly, the municipal court
judge made an adequate record as to its content, or more precisely,
the lack of its probative value. This finding was supported by
the testimony of the security guard who made the video. The
security guard testified he did not arrive on the scene until
after the victim had been assaulted.
For the foregoing reasons, we affirm defendant's conviction
and sentence.
Affirmed.
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