                                NOT FOR PUBLICATION WITHOUT THE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.
                                                                            A-2933-16T2
                                        2
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.




                                                                          A-2933-16T2
                                          3
      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


                                                                         A-2933-16T2
                                       4
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




                                                                           A-2933-16T2
                                        5
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
                                        6
      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
                                       7
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
                   8
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
                    9
            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
                                        10
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


                                                                           A-2933-16T2
                                       11
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).
                                                                          A-2933-16T2
                                       12
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
                                        13
      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.




                                                                          A-2933-16T2
                                       14
      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




                                                                               A-2933-16T2
                                         15
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
                                        16
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.




                                                                           A-2933-16T2
                                       17
