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

NOT FOR PUBLICATION WITHOUT THE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,
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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.
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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."
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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
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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.
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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
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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
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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
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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.
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