ja_mageia

tate v. Vincent P. Boland, unpublished opinion, App. Div. Docket No. A-5857-07T4 (March 23, 2010) - Conviction for harassment reversed. "[W]e are unable to give the credibility findings of the municipal court judge the usual deference due to the concern that his perception of the case was colored by his prior experience [involving a teacher hitting a student when he was in school] and the evidentiary error in refusing to consider L.G.'s financial interest in these events [because of his pending civil suit against defendant] when weighing his credibility.

Accordingly, we remand for a retrial before a different Law Division judge. The retrial is not a de novo trial based on the earlier testimony. Rather a new trial must be conducted with witnesses testifying in order that the trier of fact can determine credibility.... We also reverse because no adequate findings were made on the intent required to sustain a charge of harassment ... under N.J.S.A. 2C:33-4(a)....

It is only where the statements are said with animus, with the purpose to harass the student, independent of any legitimate teaching concern, that the harassment statute should be invoked. On remand, careful attention must be paid not only to determining the credibility of the witnesses to decide what actually happened but also to ascertain if defendant had any intent to harass within the meaning of the statute."