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Sunday, September 8, 2013



Submitted July 24, 2013 – Decided

Before Judges Reisner and Yannotti. « Citation
DataOriginal Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-18170-12.

Essex-Newark Legal Services, attorneys for appellant (Abbott Gorin, of counsel; Felipe Chavana, on the brief).

Law Offices of D. Sam Han, attorney for respondent.

Defendant Jacquil Brevard appeals from an August 16, 2012 order, granting a judgment of possession in favor of her landlord, plaintiff Berkeley Acquisitions, LLC. We affirm.1
Plaintiff filed a complaint in landlord/tenant court, contending that defendant directed terroristic threats and an assault against Luis de Castillo, one of the building's maintenance workers, by spitting in his face. Plaintiff premised the proposed eviction on N.J.S.A. 2A:18-61.1p, which authorizes eviction of a tenant for committing an assault or terroristic threats against the landlord or its employees. In ruling on defendant's summary judgment motion, Judge Mahlon L. Fast dismissed the allegation of terroristic threats, but denied summary judgment with respect to the alleged assault.
According to de Castillo, at about 10:30 p.m. on May 5, 2012, he was in his supervisor's apartment watching television, when the two men heard someone knocking loudly at the downstairs door. When de Castillo answered the door, he encountered defendant, who asked him to "go down and open the basement" so that workers from PSE&G could turn her electric service back on. De Castillo responded that "it wasn't an emergency" and "it wasn't the right time for opening the basement" because it was after his working hours. According to de Castillo, defendant responded by yelling at him, calling him a "motherfucker" and a "stupid bastard," and telling him that "you work for me." He stated that, when the insults did not persuade him, defendant "cleared her throat and spit at me on this side of my face and on my shirt."
De Castillo was very upset at being spat upon and cursed at. On cross-examination, he testified that "[w]hen somebody spits in your face, in as far as I'm concerned, that is worse than if they had hit you in the face." He returned to the apartment, cleaned off the saliva, and told his supervisor what had occurred. At his supervisor's suggestion, de Castillo went to the apartment complex's security office and filed a complaint. He testified that, although he had no further confrontations with defendant, he was afraid that if she became displeased at anything he did in the future, she would spit at him again.
The supervisor, Diomedes Demata, confirmed that on the evening of May 5, he was in his apartment watching television with de Castillo when they heard someone knocking loudly on the downstairs door. De Castillo answered the door and, from inside his apartment, Demata could hear defendant "shouting obscenities" and insisting that de Castillo open the basement door to admit the PSE&G workers. When de Castillo returned to the apartment, he looked unhappy and told Demata that "the woman . . . spit at me." Demata saw a wet stain on de Castillo's tee- shirt but could not identify the substance.
Demata also explained that the apartment complex had seven buildings. The complex's policy was that if PSE&G turned off a tenant's electricity due to non-payment, the building staff was "authorized to open up the basement until 5:00 p.m." to enable PSE&G to restore service. Otherwise, the tenant would have to wait until the next morning. The building's property manager, Aaron Hirsch, confirmed Demata's description of the complex's policy. He explained that the complex only had four maintenance workers, who did not work twenty-four hours a day except to address emergencies.
Defendant testified that her electricity was turned off for nonpayment. On May 5, PSE&G arrived at 10:30 p.m. to turn it back on. She testified that she went to the supervisor's apartment and knocked on the door a couple of times. De Castillo answered, and when she calmly asked him to open the basement door, he started "yelling" at her, saying "no, no, no, no." He then slammed the door in her face. He did not give her any reason for his refusal. At that point, defendant was "upset" and "kicked the door." She denied ever spitting at de Castillo.
Defendant testified that on Monday, May 7, she went to the complex office and complained about de Castillo's conduct to the woman who staffed the office. During that visit, she also made arrangements for maintenance to give PSE&G access to the building on the following day. On cross-examination, defendant stated that her electricity had been turned off for about twenty days, but she was not living in her apartment at the time. Instead, she was staying with relatives.
In his oral opinion placed on the record immediately after the bench trial, Judge Fast found de Castillo's testimony more credible than defendant's testimony. He was impressed with
the force, the directness, the persuasion with which he testified about having been spit on. And that he did consider it to be more serious than having been hit with . . . [a] fist.

Judge Fast also concluded that spitting in de Castillo's face constituted a simple assault, which in turn justified defendant's eviction under N.J.S.A. 2A:18-61.1p:
The law does not require that there be an actual apparent injury to the person, but rather that there be a simple assault. Pursuant to [N.J.S.A.] 2C:12-1, I find that this does constitute an assault . . . .

On this appeal, we are bound by Judge Fast's factual findings so long as they are supported by sufficient credible evidence. See Rova Farms Resort, Inc., v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We owe particular deference to his credibility determinations. In re Return of Weapons to J.W.D.149 N.J. 108, 117 (1997).
Having reviewed the record, we find no merit in defendant's argument that the trial judge's factual findings were against the weight of the evidence. Contrary to defendant's argument, de Castillo's testimony was not "uncorroborated." His supervisor, Demata, confirmed that defendant was yelling and cursing at de Castillo. This contradicted defendant's testimony that she was speaking calmly and that de Castillo was yelling at her. We find no basis to disturb Judge Fast's credibility findings or his factual determinations.
In light of the judge's factual findings, defendant's additional arguments are without merit. In relevant part, N.J.S.A. 2A:18-61.1p authorizes eviction if the tenant "has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for an offense under . . . [N.J.S.A.] 2C:12-1 . . . involving assault . . . against . . . an employee of the landlord." Ibid. In turn, N.J.S.A.2C:12-1 includes the offense of simple assault, defined as attempting "to cause or purposely, knowingly or recklessly [causing] bodily injury to another." N.J.S.A. 2C:12-1a(1). On this appeal, defendant does not argue that her conduct – spitting in de Castillo's face – did not constitute simple assault. See New Jersey v. Bazin912 F. Supp. 106, 115
(D.N.J. 1995) (noting that "[e]ven the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey law"). Rather, without citing any cases to support her contention, she argues that N.J.S.A. 2A:18-61.1p requires proof of "an aggravated assault." That argument is contrary to the plain language of the statute. Defendant's appellate arguments are without sufficient merit to warrant further discussion in a written opinion. See R. 2:11-3(e)(1)(E).

1  The trial court entered a stay of eviction pending appeal, but vacated the stay on January 7, 2013. According to her brief, defendant has moved out of the apartment which was the subject of the order on appeal. However, we have not dismissed the appeal as moot, because, according to defendant, plaintiff may be able to pursue a judgment against her for counsel fees under the terms of the lease.

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