STATE OF NEW JERSEY VS. L.F.T. (0031-18, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 17, 2021
• Docket: A-3875-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3875-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.F.T.,1

Defendant-Appellant. _______________________

Submitted February 3, 2021 – Decided February 17, 2021

Before Judges Rose and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 0031-18.

L.F.T., appellant pro se.

Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, on the brief).

PER CURIAM

1 We use initials to protect the identity of the parties' child. See R. 1:38- 3(d)(12). We use pseudonyms for ease of reference. Defendant L.F.T. appeals pro se from his conviction for simple assault,

N.J.S.A. 2C:12-1(a)(1), following a trial de novo in the Law Division. We

affirm because the findings supporting the conviction are based on substantial,

credible evidence in the record.

I.

The facts were established at the one-day municipal court trial, during

which defendant's estranged wife, K.T. (Kim), and the parties' son, S.T.

(Steven), testified on behalf of the State. Defendant elected not to testify, but

presented the testimony of Douglas Nixon, a caseworker employed by the

Division of Child Protection and Permanency (DCPP). The State also moved

into evidence Kim's handwritten statement to police.

On June 26, 2017, defendant lived in Moorestown with Kim and their

two children, thirteen-year-old Steven and his younger sister. According to

Kim, around dinnertime on that date, she dropped off the children at home

after summer camp so that she could park her van in a nearby lot. Shortly

thereafter, Kim entered the home and saw Steven "in a fetal position," with

defendant "hovering over" and yelling at the child. Steven was crying and

defendant appeared to be intoxicated. Kim left the room to compose herself.

A-3875-18 2 When she returned moments later, Kim told defendant she was going to make

a call.

At that point, defendant approached Kim and demanded her cellphone.

Kim told defendant her phone was in the van. As Kim attempted to reach for

the van keys located on a rack near the front door, defendant grabbed her arm

and pulled her from the waist to prevent her from leaving the home. The

couple struggled, Kim opened the front door, and they both fell onto the grass

outside. Kim retrieved her keys and led the children to her van, where she

called police. Defendant was arrested shortly thereafter.

Kim was injured during the fall. She sustained bruises on her legs and

arms, including a red mark where defendant grabbed her arm. In response to

the prosecutor's inquiry, Kim said she experienced pain caused by the injuries.

She also volunteered that when she was walking away from the house after the

incident, she "touched her nose because [she] felt that [she] had blood coming

out of her nose."

Steven, who was fourteen years old when he testified, corroborated most

of Kim's account. Steven said he saw his parents fall "down the steps" after

defendant grabbed Kim. He recalled observing bruises on his mother's arms

and legs.

A-3875-18 3 Nixon testified that he interviewed Kim about the incident and overall

home life on September 18, 2017. Nixon explained that DCPP conducted an

investigation of the family to determine whether the children were safe in the

home. Nixon said neither Kim nor Steven mentioned that defendant struck

Kim in the facial area on the date of the altercation. If they had so stated,

Nixon would have included that information in his report.

After the presentation of evidence, the municipal court reserved decision

for reasons that are not relevant to this appeal. On December 5, 2018, the

court issued a cogent oral decision finding defendant guilty of simple assault.

In doing so, the court made detailed factual and credibility determinations.

The municipal court found Kim's testimony was "moderately

believable," noting at times she "embellished her story to make herself appear

more vulnerable and injured than she really was at the time of the offense." In

that context, the court noted Kim's trial testimony contradicted her statement to

police that defendant struck her nose, and Kim did not mention that act in her

conversation with Nixon. But the court otherwise found Kim "was polite,

composed and consistent with her answers." Accordingly, the court

determined Kim's testimony was "credible with respect to the altercation at the

door wherein the defendant was preventing her from leaving the home."

A-3875-18 4 Similarly, the municipal court determined Steven's "credibility was

moderate," observing the "possibility" that "his mother, with whom he

resides," influenced "his recollection of the events." Nonetheless, the court

found "with regard to the facts supporting the simple assault charge, [Steven]

was consistent and did not embellish any answers."

Finally, the municipal court determined "Nixon was very credible."

Although the court found Nixon "supported the possibility" that defendant had

not punched Kim's nose, the court recognized Nixon "did not undermine the

State's case" regarding the interaction between the parties as Kim was

attempting to leave the family home. The court noted Nixon's investigation

was focused "upon determining a safe environment for the children and was

not a criminal investigation."

Accordingly, the municipal court concluded defendant "knowingly or

recklessly caused . . . bodily injury to [Kim] because he was holding her back

from leaving the home and a reasonable person knows that if the other person

resists the restraints, the parties can . . . fall[] in the struggle." According to

the court, "[t]hat fall caused bruises to the victim's legs and arms and caused

her pain."

A-3875-18 5 The municipal court's sentence included a $1000 fine, mandatory court

costs and fees, and five days of community service. The court did not impose

a jail term.

On de novo review, the Law Division judge also found defendant guilty

of simple assault. In reaching his decision, the judge reviewed the transcript of

the testimony adduced at trial, gave due deference to the municipal court's

credibility determinations, and also found defendant guilty of simple assault.

The Law Division judge imposed the same sentence as the municipal court, but

reduced defendant's fine to $250. This appeal followed.

On appeal, defendant raises the following points for our consideration:

[POINT I]

THE MUNICIPAL COURT'S FINDING OF A VIOLATION UNDER [N.J.S.A.] 2C:12-1(a)(1) IS NOT PROVEN BEYOND A REASONABLE DOUBT BECAUSE THE VICTIM IS NOT CREDIBLE AND THE MUNICIPAL COURT'S FINDINGS OF CREDIBILITY ARE INCONSISTENT WITH THE EVIDENCE.

[POINT II]

THE STATE DID NOT MEET [ITS] OBLIGATION TO PROVIDE FAVORABLE EVIDENCE AND THEREFORE THESE CHARGES MUST BE D[I]SMISSED.

A-3875-18 6 [POINT III]

THE MUNICIPAL COURT SHOULD HAVE TAKEN AN ADVERSE INFERENCE AGAINST THE STATE'S WITNESS TESTIMONY DUE TO THEIR FAILURE TO PRODUCE PICTURES OF THE ALLEGED INJURIES THAT WERE IN THEIR POSSESSION.

We reject these arguments and affirm.

II.

We begin our review with well-settled principles. On appeal from a

municipal court to the Law Division, the review is de novo on the record. R.

3:23-8(a)(2). The Law Division judge must make independent findings of fact

and conclusions of law but defers to the municipal court's credibility findings.

State v. Robertson, 228 N.J. 138, 147 (2017). This deference is especially

appropriate when a municipal court's "credibility findings . . . are . . .

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). Indeed, the municipal

court has the unique opportunity to judge live testimony. State v. Clarksburg

Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).

Similarly, appellate courts should defer to the municipal court's

credibility findings. State v. Kuropchak, 221 N.J. 368, 382 (2015). Unlike the

A-3875-18 7 Law Division, however, we do not independently assess the evidence.

Locurto, 157 N.J. at 471. The rule of deference is more compelling where, as

here, the municipal and Law Division judges made concurrent findings. Id. at

474. "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." Ibid. "Any 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[.]" Kuropchak, 221 N.J. at 383 (quoting R. 2:10-2).

"Therefore, appellate review of the factual and credibility findings of the

municipal court and the Law Division 'is exceedingly narrow.'" State v. Reece,

222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J. at 470).

Pursuant to N.J.S.A. 2C:12-1(a)(1), a person is guilty of simple assault if

he "attempts to cause or purposely, knowingly or recklessly causes bodily

injury to another." N.J.S.A. 2C:11-1(a) defines "bodily injury" as "physical

pain, illness or any impairment of physical condition."

A-3875-18 8 A.

In his first point, 2 defendant maintains his conviction must be reversed

because the municipal court determined the testimony of Kim and Steven was

"moderately believable." Similar to his attorney's argument before the Law

Division judge, defendant claims those credibility assessments are inconsistent

with the beyond a reasonable-doubt standard of proof required for criminal

convictions. Defendant enumerates eight "crucial facts in evidence that go

directly to the purported credibility of [Kim and Steven]."

In his consideration of the municipal court's credibility determinations,

the Law Division judge addressed whether the municipal court was required to

accept the "false in one, false in all" maxim in this case. Pursuant to that

principle, the trier of fact is instructed:

If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

2 In his preliminary statement, defendant suggests the Law Division judge "rubberstamped" the municipal court's credibility findings, but acknowledges the judge "br[oke] away from deference" by reducing his fine from $1000 to $250. Defendant does not otherwise challenge the Law Division's de novo review of the municipal court's factual findings and conclusions of law. A-3875-18 9 [Model Jury Charges (Criminal), "False in One – False in All" (rev. Jan 14, 2013).]

The false-in-one-false-in-all principle "is simply one of many aids which

the trier-of-fact may utilize to evaluate the credibility of a witness." Capell v.

Capell, 358 N.J. Super. 107, 111 n.1 (App. Div. 2003). This principle "should

be used only when the trier-of-fact finds that the witness intentionally testifies

falsely about a material fact" and, as such, it should not be utilized "in the fac e

of a falsehood about a non-material fact." Ibid.

In the present case, neither the Law Division judge nor the municipal

court determined Kim or Steven "intentionally testified falsely about a material

fact." Although both courts determined Kim embellished her testimony about

the punch to her nose, that fact was immaterial to their concurrent findings that

Kim was injured during her struggle with defendant, who "knowingly or

recklessly" caused her bodily injury. Those findings were grounded in

testimony that was credible and not embellished.

Deferring to those credibility findings, the Law Division judge

concluded "the parties physically struggled and the defendant attempted to

prevent the victim from leaving the home to get to her car to get to her p hone,

and as a result, they rolled out the door and she sustained some minimal . . .

A-3875-18 10 injuries." That minimal injury resulting from the struggle satisfied the

definition of bodily injury under N.J.S.A. 2C:11-1(a).

In sum, the determination of defendant's guilt turned solely upon the

credibility of the witnesses. The Law Division judge expressly and properly

deferred to the municipal court judge's extensive and detailed credibility

findings. The Law Division judge made his own determination that defendant

caused Kim's injuries to her arms and legs. We are therefore convinced his

credibility determinations and factual findings supported a de novo finding that

defendant was guilty of simple assault beyond a reasonable doubt.

B.

Finally, we consider defendant's overlapping contentions raised in points

II and III. Renewing his counseled arguments before the Law Division,

defendant maintains the State's failure to produce photographs depicting Kim's

injuries on the date of the incident constituted a Brady3 violation, and required

the municipal court to draw an adverse inference from that failure. Notably,

neither argument was raised before the municipal court.

Instead, defendant moved to suppress photographs of Kim's injuries,

which he had requested but not received from the State. During argument

before the municipal court, the prosecutor acknowledged the police reports 3 Brady v. Maryland, 373 U.S. 83 (1963). A-3875-18 11 referenced photographs, which had not been provided to defendant. The

prosecutor also disclosed his attempts to obtain the photographs that day were

met in vain. Accordingly, the municipal court granted the motion "should they

ever reappear."

In his oral decision denying both applications, the Law Division aptly

considered defendant's belated arguments in view of the governing law.

Initially, the judge recognized that generally, photographs depicting "an injury,

especially of a simple assault injury," which does not require "serious bodily

injury but just some pain-producing injury . . . [are] not always exculpatory.

Many times, they're inculpatory." Nor was an adverse inference warranted

here, where Steven testified that he saw "some bruises on his mother's legs" on

the day of the incident.

Under Brady, "the suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution." 373 U.S. at 87. "In order to establish a Brady violation, the

defendant must show that: (1) the prosecution suppressed evidence; (2) the

evidence is favorable to the defense; and (3) the evidence is material." State v.

Martini, 160 N.J. 248, 268 (1999). Evidence is considered material if "there is

A-3875-18 12 a reasonable probability that timely production of the withheld evidence would

have led to a different result at trial." State v. Brown, 236 N.J. 497, 519

(2019) (internal quotation marks omitted). Materiality turns on "the

importance of the [evidence] and the strength of the State's case against [the]

defendant as a whole." State v. Marshall, 123 N.J. 1, 200 (1991).

In the present matter, the prosecutor candidly acknowledged the

photographs mentioned in the police reports were not provided to defe ndant,

arguably satisfying the first prong. However, as the Law Division judge

recognized, photographs depicting a bodily injury – or lack of bodily injury –

are not necessarily exculpatory because the prosecution need only prove the

victim suffered "pain," as opposed to visible injury, under the statutory

definition of bodily injury. See N.J.S.A. 2C:11-1(a). In that regard, the

photographs were not material under prong three. Accordingly, there was no

Brady violation here.

Nor did the State's failure to produce the photographs require the

municipal court to draw an adverse inference from the absence of that

evidence. As a preliminary matter, because defendant did not raise these

contentions at trial, the municipal court had no opportunity to consider

whether to draw an adverse inference here. Moreover, the adverse inference

A-3875-18 13 charge enunciated in State v. Clawans, 38 N.J. 162 (1962), has fallen into

disfavor with our Supreme Court in more recent years. See State v. Hill, 199

N.J. 545, 566 (2009). Instead, the municipal court properly granted

defendant's suppression motion. We therefore discern no error in the Law

Division judge's decision, rejecting defendant's Brady violation and adverse

inference arguments.

Affirmed.

A-3875-18 14