STATE OF NEW JERSEY VS. CASIMIR RUPINSKI, III (06-05-16, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-2933-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CASIMIR RUPINSKI, III,
Defendant-Appellant.
__________________________
Argued December 12, 2018 – Decided January 10, 2019
Before Judges Accurso, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Cape May County, Municipal Appeal No. 06-
05-16.
Michael J. Ward, IV, argued the cause for appellant.
Edward H. Shim, Assistant Prosecutor, argued the
cause for respondent (Jeffrey H. Sutherland, Cape May
County Prosecutor, attorney; Edward H. Shim, of
counsel and on the brief).
PER CURIAM
Defendant Casimir Rupinski, III, appeals from a Law Division order
entered after a de novo hearing on the record before the Middle Township
municipal court finding him guilty of simple assault, N.J.S.A. 2C:12-1(a)(1).
Based on our review of the arguments advanced on appeal and in light of the
record and applicable law, we affirm.
I.
In March 2015 defendant was arrested and charged with simple assault
after his former girlfriend, D.F.,1 reported to Middle Township Police Officer
William Lamanteer that defendant pushed her down and punched her in the side
of her head during an altercation in the bedroom of D.F.'s home. During the
municipal court trial that followed, Lamanteer, D.F. and her friend, V.B., and
D.F.'s adult son, T.F., who was present in the home when the alleged assault
occurred, testified for the State. Defendant testified on his own behalf.
Following the presentation of the evidence and the summations of counsel,
the municipal court judge rendered a comprehensive bench opinion, making
detailed factual and credibility findings supporting her determination that
defendant was guilty of simple assault. The judge sentenced defendant to ninety
1
We use initials to identify the victim and witnesses to protect the privacy and
identity of the victim.
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days in jail and the payment of fines and penalties. Defendant appealed to the
Law Division, and the municipal court judge granted a stay of defendant 's
custodial sentence pending that appeal.
The Law Division judge conducted a trial de novo on the record before
the municipal court. In a well-reasoned and detailed oral opinion, the judge
made the following credibility determinations and findings of fact.
Defendant and D.F. dated for approximately two years prior to January
2015 and remained friendly and stayed in contact during the months following
their break-up. On the evening of March 25, 2015, D.F. was at a restaurant and
bar with friends, including V.B. D.F. texted defendant and requested that he
pick her up and drive her home because she had consumed two beers and was
upset because her godfather had passed away and "could use someone to talk
to."
After defendant arrived at the restaurant, he drank a beer and D.F. ordered
a mixed alcoholic drink. When D.F. stepped outside of the bar for a cigarette, a
young man approached her and asked for a cigarette. D.F. testified that after
she returned to the bar, defendant appeared angry at her interaction with the
young man, who had also entered the bar.
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Defendant drove D.F. to her home, where they went to her bedroom,
talked for a while and then had sexual relations. At some point, defendant left
the bed, went into the bathroom adjacent to the bedroom, and returned screaming
that D.F. was a "whore" and saying he should take D.F. back to the bar so the
young man could take her to her godfather's funeral.
D.F. told defendant to stop yelling as she walked toward the bathroom.
Defendant angrily pushed on her shoulder and she stumbled backwards. She
pushed back and defendant punched D.F. in the head and caused her to fall. As
she began to get up, she saw defendant pull his right arm back. Believing
defendant was about to strike her again, she grabbed defendant by the testicles
and twisted them. Defendant struck D.F. in the head and she fell to the floor.
D.F.'s adult son, T.F., was in the house, heard something hit the floor and
went to investigate. T.F. entered the room and saw defendant getting dressed.
Defendant then left the home. T.F. found D.F. in the bathroom. She had blood
on the side of her neck and face.
D.F. called 9-1-1 ten minutes later. Officer Lamanteer responded and
found D.F. visibly upset. She reported that she had been assaulted by defendant.
Officer Lamanteer took photographs of D.F.'s injuries that showed black and
blue marks by her left ear and on her left wrist, a bruise on her right shoulder
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and breast, a swollen lip and a cut on her left ear. D.F. refused medical treatment
because she did not have medical insurance. Officer Lamanteer did not smell
alcohol on D.F.'s breath and did not believe she was intoxicated.
Defendant was arrested a short time later by the Lower Township Police
Department at his home because there was evidence he was involved in a
domestic violence incident with a visible sign of injury to the alleged victim.
Defendant was turned over to Lamanteer, who described defendant as
belligerent, agitated and uncooperative. In response to a question posed by
Lamanteer, defendant said he was not injured.
Defendant testified at trial that he and D.F. had a prior dating relationship
and that on March 25, 2015, he met her at the bar after she requested that he
provide her with a ride home. He acknowledged seeing D.F. speak to a man
outside of the bar and said they laughed about it. He made a comment that she
was "still being social" and "guess[ed]" D.F. took the comment "the wrong way."
Defendant explained that he drove D.F. to her home and they went inside.
According to defendant, D.F. made herself a drink with whiskey, but he did not
drink with her. He said that after he and D.F. had sexual relations, she went into
the bathroom and returned with a second drink. Defendant explained that he
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and D.F. then argued about the funeral, with defendant questioning D.F. about
why her two sons would not accompany her.
Defendant further testified D.F. became irate about his comments
concerning her sons and he began to gather his clothes so he could leave.
Defendant stated that D.F. than "ran over and grabbed [his] testicles" and told
him that he was "not going anywhere until [they] finish this." Defendant said
he tried to get D.F. to release her grip and "pushed her with two hands to get her
off." Defendant explained D.F. stumbled and hit the bookcase. Defendant
asserted he ran into the bathroom and tried closing the door, but D.F. ran into
the bathroom door "with all her force, with all her body."
Defendant said he was in the bedroom as T.F. entered. He told T.F. his
mother "was being irate" and requested that T.F. remain inside the room while
defendant dressed. According to defendant, he then quickly dressed and left the
home.
The Law Division judge agreed with, and deferred to, the municipal
court's assessment that defendant's testimony about what occurred in D.F.'s
bedroom was not credible and that D.F.'s and T.F.'s testimony was credible. The
Law Division judge also made detailed independent findings based on his review
of the record supporting the credibility determination.
A-2933-16T2
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The judge also rejected defendant's self-defense claim and found
defendant became angry with D.F. while in the bedroom, pushed her and caused
her to stumble and struck her head with his right hand. The judge also found
D.F.'s visible injuries were consistent with those actions. The judge further
found D.F. grabbed defendant's testicles only so defendant would not hit her
again and that, in response, defendant struck D.F. with a closed fist punch.
The judge found defendant guilty of simple assault. The judge imposed a
ninety-day jail sentence and required that defendant pay mandatory fines and
penalties and court costs. This appeal followed.
Defendant presents the following arguments for our consideration.
POINT I
THE MUNICIPAL COURT AND THE LAW
DIVISION JUDGE ERRED AS A MATTER OF LAW
WHEN THEY RULED THAT THE POLICE DID NOT
REQUIRE A WARRANT TO ENTER DEFENDANT'S
RESIDENCE IN LOWER TOWNSHIP AT 3:00 A.M.
FOR THE PURPOSE OF AROUSING HIM OUT OF
BED AND ARRESTING HIM, AND THE
COMPLAINT AGAINST THE DEFENDANT
SHOULD HAVE BEEN DISMISSED.
a. No exigent circumstances existed on March 26, 2015
that would excuse the failure to obtain an arrest warrant
prior to the Lower Township Police Department's entry
into the Rupinski home.
A-2933-16T2
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POINT II
THE FAILURE OF THE MIDDLE TOWNSHIP
POLICE DEPARTMENT TO OBTAIN AND
PRESERVE CRITICAL EVIDENCE, AND PROVIDE
COPIES OF RECORDINGS OF THE DEFENDANT
WHILE HE WAS IN THE DEPARTMENT'S
CUSTODY WERE HIGHLY PREJUDICIAL AND
UNFAIRLY LIMITED THE ABILITY OF THE
DEFENDANT, AND WARRANTED DISMISSAL OF
OFFICER LAMANTEER'S COMPLAINT.
POINT III
THE FAILURE OF THE MIDDLE TOWNSHIP
POLICE DEPARTMENT TO PRESERVE ANY
RECORDING OF THE EX PARTE TEMPORARY
RESTRAINING ORDER APPLICATION (AS
REQUIRED BY COURT RULE) WAS PREJUDICIAL
TO THE DEFENDANT AND VIOLATED THE
DEFENDANT'S CONSTITUTIONAL RIGHTS TO
CONFRONT HIS ACCUSER.
POINT IV
THE MUNICIPAL COURT IMPROPERLY
REFUSED TO ADMIT INTO EVIDENCE THE
PHOTOGRAPHS OF DEFENDANT'S INJURIES.
POINT V
THE MUNICIPAL COURT'S DECISION NOT TO
INCLUDE THE ENTIRE TESTIMONIAL
TRANSCRIPT OF THE PARTIES' TESTIMONY
BEFORE NEW JERSEY SUPERIOR COURT JUDGE
RAUH AS PART OF THE MUNICIPAL COURT
RECORD WAS WHOLLY UNREASONABLE, IN
LIGHT OF THE MUNICIPAL COURT'S DECISION
A-2933-16T2
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TO ALLOW THE PROSECUTOR TO UTILIZE THE
TRANSCRIPT FOR CROSS EXAMINATION
PURPOSES.
POINT VI
THE MUNICIPAL COURT AND THE LAW
DIVISION JUDGE ERRED WHEN THEY FOUND
[D.F.'S] TESTIMONY TO BE CREDIBLE IN LIGHT
OF HER NUMEROUS CONTRADICTORY
STATEMENTS TO MEMBERS OF THE MIDDLE
TOWNSHIP POLICE DEPARTMENT AND HER
TESTIMONY AT THE FINAL RESTRAINING
ORDER HEARING BEFORE JUDGE RAUH.
POINT VII
THE MUNICIPAL COURT AND THE LAW
DIVISION ERRED WHEN THEY FOUND [D.F.'S]
TESTIMONY TO BE CREDIBLE BECAUSE THEY
FAILED TO ADDRESS THE FACT THAT [D.F.'S]
INTOXICATED RECOLLECTION OF EVENTS
GROSSLY CONTRADICTED THE TESTIMONY OF
THE MOST CREDIBLE PROSECUTION WITNESS,
HER VERY SOBER SON [T.F.].
POINT VIII
THE MUNICIPAL COURT TESTIMONY OF THE
APPARENTLY INTOXICATED [D.F.] REGARDING
THE NIGHT IN QUESTION ALSO
CONTRADICTED HER PRIOR COURT
TESTIMONY UNDER OATH AND CREATED
MORE THAN A REASONABLE DOUBT
REGARDING THE DEFENDANT'S GUILT.
A-2933-16T2
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POINT IX
THE UNCONTROVERTED CREDIBLE EVIDENCE
OF MR. RUPINSKI ESTABLISHED THAT HE
ACTED IN SELF[-]DEFENSE IN ORDER TO GET
[D.F.] TO RELEASE HER GRIP ON HIS TESTICLES
AND SCROTUM AND THEREFORE MR. RUPINSKI
WAS NOT GUILTY OF SIMPLE ASSAULT.
II.
On an appeal taken from the Law Division's final decision, "[o]ur review
is limited to determining whether there is sufficient credible evidence present in
the record to support the findings of the Law Division judge, not the municipal
court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).
This requires "'consideration of the proofs as a whole,' and not merely those
offered by the defendant." State v. Kuropchak, 221 N.J. 368, 383 (2015)
(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "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[.]" Ibid. (alteration in
original) (quoting R. 2:10-2). Like the Law Division, we defer to credibility
findings made by the municipal court. Id. at 382.
When the Law Division agrees with the municipal court, the two-court
rule must be considered. "Under the two-court rule, appellate courts ordinarily
should not undertake to alter concurrent findings of facts and credibility
A-2933-16T2
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determinations made by two lower courts absent a very obvious and exceptional
showing of error." State v. Locurto, 157 N.J. 463, 474 (1999).
Measured against these principles, we find defendant's arguments in
Points VI, VII, VIII and IX of his brief to be without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(2), other than to note that the
judge's fact and credibility findings are not only consistent with those made by
the municipal court judge, they are also amply supported by the trial record.
See Locurto, 157 N.J. at 474. .
We are also unpersuaded by defendant's contention that his conviction
should be reversed because he was arrested without the prior issuance of an
arrest warrant. The Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35, "broadened the discretion of a police officer to arrest an alleged
perpetrator . . . provided that the officer had probable cause to believe the
incident occurred." Wildoner v. Borough of Ramsey, 162 N.J. 375, 388 (2000).
"The purpose of this broadened authority to arrest was not to punish the
perpetrator, but to protect the victim." Ibid. "[T]he Legislature attempted to
assure that more arrests would be made, and more victims protected, from
domestic violence." Ibid.The PDVA mandates that "a law enforcement officer responding to the
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incident," after determining probable cause exists to believe domestic violence
occurred, "shall arrest the person who is alleged to be the person who subjected
the victim to domestic violence," N.J.S.A. 2C:25-21(a), if "[t]he victim exhibits
signs of injury caused by an act of domestic violence," N.J.S.A. 2C:25-21(a)(1).
However, the statute, which has been characterized as the "mandatory arrest
provision," must "be read and construed with deep respect for, and adherence
to, the constitutional underpinnings of our search and seizure protections." State
v. Bryant, 227 N.J. 60, 74 (2016).
The record shows Officer Lamanteer had probable cause to arrest
defendant pursuant to N.J.S.A. 2C:25-21(a)(1). D.F. reported defendant
committed an act of domestic violence, a simple assault, 2 and she showed visible
signs of injury that were consistent with her report. Thus, "the facts and
circumstances within [the officer's] knowledge and of which [he] had reasonably
trustworthy information were sufficient to warrant a prudent man in believing
that the [defendant] had committed or was committing an offense." Wildoner,
162 N.J. at 389 (first alteration in original) (quoting Beck v. Ohio, 379 U.S. 89,
91 (1964)). Moreover, although the police entered defendant's home without a
2
"Assault" under N.J.S.A. 2C:12-1 is a predicate act of "domestic violence"
under the PDVA. N.J.S.A. 2C:25-19(a)(2).
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warrant to make the arrest, it is undisputed they did so with the consent of
defendant's mother, who also resided at the home. See generally State v.
Cushing, 226 N.J. 187, 198-200 (2016) (explaining principles permitting third-
party consent to search a home).
Defendant also contends his conviction should be reversed because the
Middle Township Police Department failed to obtain and preserve critical
evidence relevant to his defense resulting in a violation of his constitutional right
to confront Officer Lamanteer. More particularly, defendant argues Officer
Lamanteer took only one photograph of D.F.'s injured ear which failed to
accurately depict her injury and failed to take photographs of D.F.'s bedroom
and bathroom. He also argues the State failed to produce video recordings of
him while he was in the police car and at the police station following his arrest.
We reject defendant's contention that his rights were violated because
Officer Lamanteer failed to take photographs defendant believed he should have
taken. The police are not obligated to develop or collect any particular evidence,
and defendant's rights were not violated by Officer Lamanteer's purported
failure to take photographs defendant believes might support his defense. See
State v. Gordon, 261 N.J. Super. 462, 465 (App. Div. 1993) ("We are aware of
no case in any jurisdiction which imposes a duty to create evidence.").
A-2933-16T2
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We also reject defendant's assertion he is entitled to a reversal of his
conviction because the State did not preserve video recordings. Where there is
a claimed loss or destruction of evidence, "the court must determine (1) whether
there was bad faith or connivance on the part of the government and (2) whether
defendant was prejudiced by the loss or destruction of the evidence." State v.
Washington, 165 N.J. Super. 149, 155 (App. Div. 1979). Additionally, the court
is required to determine "whether the evidence was sufficiently material to the
defense." State v. Dreher, 302 N.J. Super. 408, 483 (App. Div. 1997). "To be
material, the 'evidence must both possess an exculpatory value that was apparent
before [it] was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.'"
Ibid. (alteration in original) (quoting California v. Trombetta, 467 U.S. 479, 489
(1984)).
As the judge correctly determined, defendant made no such showing here.
Defendant presented no evidence showing the State acted in bad faith, that the
recordings had any exculpatory value or that his defense was in any manner
prejudiced. See Washington, 165 N.J. Super. at 155. The loss or destruction of
the recordings provides no basis for a reversal of defendant's conviction.
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Defendant next contends the municipal court judge erred by denying his
request to admit the full transcript from the domestic violence restraining order
hearing. He argues the entire transcript should have been admitted because the
court allowed the State to cross-examine defendant based on the transcript of his
testimony at the domestic violence restraining order hearing. We review a trial
judge's evidentiary rulings for an abuse of discretion. State v. Terrell, 452 N.J.
Super. 226, 248 (App. Div. 2016). We find no abuse of discretion here.
N.J.S.A. 2C:25-29(a) prohibits the use of testimony given by the plaintiff
or defendant in a domestic violence matter under the PDVA "in the simultaneous
or subsequent criminal proceeding against the defendant, other than . . . where
it would otherwise be admissible hearsay under the rules of evidence that govern
where a party is unavailable." We have held, however, that N.J.S.A. 2C:25-
29(a) allows the defendant's use of the domestic violence hearing testimony of
the plaintiff "during cross-examination to impeach contradictory or inconsistent
testimony that is material to the charges . . . or to show bias, prejudice, or ulterior
motives on the part of the witness." State v. Duprey, 427 N.J. Super. 314, 323
(App. Div. 2012). Where a defendant chooses to testify at a criminal trial, he or
she may be cross-examined using his or her prior testimony at the domestic
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violence restraining order hearing "to the same extent as the [domestic violence]
complainant." Id. at 324.
Here, the municipal court judge and Law Division judge applied these
principles and allowed the State's use of defendant's testimony from the
restraining order hearing during the State's cross-examination of him.
Defendant offers no legal support for his contention that the entirety of the
domestic violence proceeding transcript was admissible simply because the
State properly used a portion of it to cross-examine him. Moreover, defendant
was free to cross-examine D.F. at trial by using her testimony at the domestic
violence proceeding. We therefore discern no abuse of discretion in the court 's
denial of defendant's request to admit the entire transcript and we otherwise
reject defendant's contention because he failed to include the transcript in the
record on appeal. See Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz
Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005) (stating an
appellate court is not "obliged to attempt review of an issue when the relevant
portions of the record are not included").
We agree that with defendant's contention that the Law Division judge
erred by finding that the photographs of lacerations in defendant's pubic area
were inadmissible because defendant could not authenticate photographs he had
A-2933-16T2
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not taken. Defendant's testimony that the photographs accurately depicted
injuries inflicted by D.F. was sufficient to satisfy the authentication requirement
of N.J.R.E. 901. See Brenman v. Demello, 191 N.J. 18, 21 (2007) (finding
admissibility of photographs "rests on whether [they] fairly and accurately
depict[] what [they] purport to represent"). The error, however, was harmless
because there is no dispute that D.F. grabbed defendant's testicles—D.F.
admitted doing so. There is also no dispute defendant used force against D.F.
He contends only that he did so in self-defense. Thus, the issue presented for
the court's determination was whether defendant initiated the physical contact
with D.F., and photographs confirming his testimony that he suffered lacerations
are of little value in making that assessment. Exclusion of the photographs was
not clearly capable of producing an unjust result. R. 2:10-2.
Defendant's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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