STATE OF NEW JERSEY VS. KAREN BORNÂ (13-065, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-3896-14T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    KAREN BORN,
    Defendant-Appellant.
    ____________________________
    Submitted May 24, 2017 – Decided July 17, 2017
    Before Judges Fuentes and Farrington.
    On appeal from the Superior Court               of New
    Jersey,   Law   Division,   Monmouth             County
    Municipal Appeal No. 13-065.
    Karen Born, appellant pro se.
    Christopher J. Gramiccioni, Monmouth County
    Prosecutor, attorney for respondent (Monica
    do Outeiro, Assistant Prosecutor, of counsel
    and on the brief).
    PER CURIAM
    Defendant Karen Born was charged with two disorderly persons
    offenses: false reports to law enforcement, N.J.S.A. 2C:28-4b; and
    resisting arrest, N.J.S.A. 2C:29-2a(1).             She was also charged with
    eight motor vehicle offenses, including reckless driving, N.J.S.A.
    39:4-96;     careless    driving,   N.J.S.A.     39:4-96;    two   charges    of
    driving while suspended, N.J.S.A. 39:3-40; failure to exhibit a
    driver's license, N.J.S.A. 39:3-29a; driving without a license,
    N.J.S.A. 39:3-10a; delaying traffic, N.J.S.A. 39:4-56; and failure
    to wear a seat belt, N.J.S.A. 39:3-76.2f.
    Defendant was tried in the Aberdeen Municipal Court and
    convicted on all of the motor vehicle violations and the two
    disorderly     person     offenses,     making    false     reports   to     law
    enforcement, and resisting arrest.            On October 9, 2013, a plea
    agreement was reached regarding other outstanding charges which
    resulted in dismissal of four charges and downgrading or amendment
    of three others to which defendant pled guilty.
    Judge Berube imposed an aggregate sentence of $5,002 in fines,
    a six-month driver's license suspension, and 195 days county jail,
    in addition to mandatory fines and costs.
    Defendant filed a Notice of Appeal with the Superior Court,
    Law Division on or about October 9, 2013.             The Honorable Ronald
    Lee Reisner, J.S.C. remanded the matter to Aberdeen Municipal
    Court   on   September    19,   2014,   "to    complete   the   record"    with
    documents referenced in municipal court transcripts.
    Judge Reisner held a trial de novo on February 13, 2015, and
    found defendant guilty of making false reports to law enforcement,
    2                              A-3896-14T4
    resisting arrest, reckless driving, and failure to exhibit a
    driver’s license.      He sentenced defendant to an aggregate sentence
    of one year of probation, $250 in fines, and the required costs
    and fees.
    Defendant presents these arguments for review on appeal:
    POINT I
    THE STATE DID NOT MEET ITS BURDEN OF PROVING
    APPELLANT KNOWINGLY MADE A FALSE REPORT.
    POINT II
    ON THE RESISTING ARREST CHARGE, APPELLANT'S
    LICENSE WAS VALID. SHE ENDED UP OPENING HER
    DOOR FOR OFFICERS. THE CORRECT CHARGE SHOULD
    HAVE BEEN OBSTRUCTION.
    POINT III
    STATE DID NOT PROVE THE ELEMENTS OF RECKLESS
    DRIVING FOR WHICH APPELLANT WAS NOT STOPPED,
    TICKET WAS MAILED TO HER HOME BY[ ]OFF DUTY
    OFFICER SHE HAS HISTORY WITH, AND NO POLICE
    REPORT WAS MADE.
    POINT IV
    OFFICERS'[sic] TESTIMONY IS INCONSISTENT AND
    NOT CREDIBLE, APPELLANT PREVIOUSLY ASSAULTED
    BY THIS OFFICER AND PREVIOUSLY TRIED TO FILE
    CHARGES AGAINST HIM, AND STOP OCCURRED IN HER
    DRIVEWAY WITH NO POLICE LIGHTS ON AND SHE WAS
    NOT DRIVING.
    In its opposing brief, the State argues that the convictions
    should be affirmed.
    3                          A-3896-14T4
    Following our review of the arguments, considering the record
    and the applicable law, we affirm.
    The essential facts are taken from the municipal court record.
    On December 4, 2012, Monmouth County dispatcher Kevin O'Brien
    received a call at approximately 3:00 p.m. from the defendant, who
    claimed intruders were assaulting her in her home. O'Brien alerted
    the Aberdeen Police Office and Officer Mary Johnson was dispatched.
    When Johnson received no response after knocking on the door
    to defendant's home, she proceeded to walk around the home's
    perimeter.   When her search yielded nothing, Johnson knocked on
    the door again and defendant's brother let Johnson and additional
    backup officers into the home.         After a brief walk through, the
    officers failed to find defendant or any sign of intruders.
    On December 20, 2012, at approximately 7:30 p.m., Officer Gus
    Grivas left the Aberdeen Police station in his personal vehicle.
    As he approached the "T" intersection of Church and Cypress
    streets, he saw a vehicle approaching a stop sign "at a fast rate
    of speed."    As Grivas slowed his vehicle, the approaching car
    stopped   "[a]t   the   last   minute    .   .   .   almost   out   in   the
    intersection."    As Grivas continued driving, the other vehicle
    made a right turn in front of his car.           Grivas "slam[med] on the
    brakes" and drove "into the other lane to avoid collision."
    4                                A-3896-14T4
    Grivas pulled up next to the car and recognized defendant as
    the driver.       He testified that she was cursing and "waving her
    arms."   Grivas continued driving and radioed dispatch to check the
    validity of defendant's driver's license.           A summons for reckless
    driving was later served upon defendant by mail.          Defendant denies
    she was involved in any incident with Grivas on that day.
    On April 2, 2013, Police Officer Craig Hausmann observed
    defendant driving at approximately 10:35 p.m.               Based on his
    knowledge   that     defendant's   license    was   suspended,    he     began
    following   her    until   she   arrived   home.     Hausmann    drove     into
    defendant's driveway and, after confirming with dispatch that her
    license was suspended, asked defendant to produce her license
    which she was unable to do.
    On May 15, 2013, Sergeant Matthew Lloyd confirmed the validity
    of a bail order and warrant to detain defendant issued August 7,
    2012. The next day, May 16, 2013, Sergeant Lloyd informed Aberdeen
    police officers of the order's validity during morning briefing.
    Later that same day, Patrolman Hausmann observed defendant driving
    and communicated the information via police radio.
    Sergeant Lloyd, who was near the scene, pulled defendant
    over, instructed her to exit the vehicle, and advised she was
    under arrest.      Defendant refused, claiming the order was invalid
    and that she was on the phone with her lawyer.              Eventually, a
    5                                 A-3896-14T4
    backup   officer   used   a    device   to   unlock   the   passenger     door.
    Defendant then exited the vehicle and was placed under arrest.
    Defendant denies she was driving.
    In the trial de novo, Judge Reisner tried "the case anew
    based on the record and . . . giving some deference to the findings
    of credibility . . . ."        Judge Reisner considered the charges in
    chronological order.          Commencing with those findings of guilt
    which are the subject of defendant's appeal, we turn to Judge
    Reisner's findings regarding the December 4, 2012 allegations that
    defendant made a false report to the police contrary to N.J.S.A.
    2C:28-4b.   After reviewing the circumstances of the incident based
    upon the record and the elements of the offense, the judge found:
    Under these circumstances I'm satisfied beyond
    a reasonable doubt from the circumstances that
    the defendant made the call, that no such
    incident ever occurred and that she knew that
    no such incident was ever occurring. So I'm
    satisfied beyond a reasonable doubt that she
    committed the disorderly persons offense of a
    fictitious report to the police.
    Defendant argues that Judge Reisner's finding is inconsistent
    with that of the municipal judge.            The factual findings made by
    the municipal court are not relevant here.             We review the facts
    found by the Law Division to determine whether those findings are
    supported by the competent evidence in the record.
    6                               A-3896-14T4
    Defendant argues that she lacked the requisite intent to make
    a false report, or the presence of mind to understand her report
    was not based in reality.         This claim was examined and rejected
    by Judge Reisner.     Defendant admitted making the call purporting
    to report persons in her home who were assaulting her.                  The
    recording of the call between defendant and the dispatcher speaks
    for itself.     Judge Reisner independently found, based on the trial
    record, that defendant knew the incident she reported did not
    occur.    There is no basis in the record to support defendant's
    argument to the contrary.
    Defendant     further   confuses    the    court's   fact-findings,
    pertinent to establishing whether the State has met its burden of
    proof,   with   assessment   of   aggravating   and   mitigating   factors
    performed by the court to determine the appropriate sentence to
    be imposed.     Judge Reisner considered defendant's psychiatrist's
    report only in the context of fashioning an appropriate sentence.
    As a result, he substantially reduced her sentence, eliminating
    the custodial term entirely, and reducing the fines to $250.
    Judge Reisner next considered the charge of reckless driving
    pursuant to N.J.S.A. 39:4-96 which was issued on December 20,
    2012.    After noting that the municipal court judge made a finding
    of guilt on the "preponderance evidence, which is clearly wrong
    as a matter of law", he found beyond a reasonable doubt that
    7                             A-3896-14T4
    defendant was guilty of reckless driving when she caused Police
    Officer Gus Grivas to swerve out of her way to avoid a collision.
    Defendant claims this charge was based on a "long history" she has
    with the police officer who filed the charge against her, against
    whom she had "previously written 5 Internal Affairs Complaints."
    In addition, defendant cites to the facts that there was no stop
    and no police report filed in connection with the incident to
    support her claim that the incident never occurred.   Her arguments
    have no basis in law and are without merit.
    Based on his own de novo review of the record, Judge Reisner
    also found beyond a reasonable doubt that the arresting officer,
    Police Officer Christopher DeSarno, was credible when he testified
    he observed defendant driving in the Township of Aberdeen.
    Finally, the court considered the testimony of the police,
    including that of Officer Hausmann, regarding the incident of
    April 2, 2013.   Citing the video of the incident and the testimony
    of the officers, Judge Reisner was "satisfied based on [Patrolman]
    Hausmann's testimony that the operation of the vehicle was careless
    in violation of 4-97 beyond a reasonable doubt and that she did
    not produce a driver's license . . . ."       He further found "the
    video shows clearly that she purposefully prevented the officers
    from effectuating the arrest by refusing to open the car doors and
    8                           A-3896-14T4
    step outside the car.          So I'm satisfied beyond a reasonable doubt
    that she's guilty of resisting arrest."
    Our    function     as   a   reviewing    court   is    governed      by   the
    "substantial evidence" rule; namely, to determine whether 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
    , 157 (1964).                 If we determine 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." 
    Johnson, supra
    ,
    42 N.J. at 162.
    Just as the Law Division does when conducting a de novo
    review, we "defer to [the] trial court['s] credibility findings
    that are often influenced by matters[,] such as observations of
    the   character     and    demeanor    of      witnesses     and   common     human
    experience[,] . . . not transmitted by the record."                      State v.
    Locurto, 
    157 N.J. 463
    , 474 (1999).               We reverse if we find the
    trial "judge went so wide of the mark, a mistake must have been
    made."      
    Id. at 471
    (quoting 
    Johnson, supra
    , 42 N.J. at 162).
    Moreover,
    The rule of deference is more compelling
    where . . . two lower courts have entered
    concurrent judgments on purely factual issues.
    Under the two-court rule, appellate courts
    ordinarily should not undertake to alter
    9                                   A-3896-14T4
    concurrent findings of fact and credibility
    determinations made by two lower courts absent
    a very obvious and exceptional showing of
    error.
    [Id. at 474 (citing Midler v. Heinowitz, 
    10 N.J. 123
    , 128-29 (1952).]
    With these principles in mind, we affirm substantially based
    on   the   reasons   expressed   by   Judge   Reisner.   The   balance   of
    defendant's arguments lack sufficient merit to warrant discussion
    in a written opinion.     R. 2:11-3(e)(2).
    Affirmed.
    10                          A-3896-14T4
    

Document Info

Docket Number: A-3896-14T4

Filed Date: 7/17/2017

Precedential Status: Non-Precedential

Modified Date: 7/17/2017