A North Bergen man who wrote a sign that said “The mayor is out of control with the draconian rules & somebody must cap his ass” in late 2014 lost his appeal in a malicious prosecution case.
By John Heinis/Hudson County View
“In this appeal, we consider the trial court’s dismissal of two counts of plaintiff’s complaint with prejudice for failure to meet the relevant statutes of limitations, and dismissal of the malicious prosecution count without prejudice pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted,” Superior Court of New Jersey Appellate Division Judges Patrick DeAlmeida and Berdote Byrne wrote on Friday.
“Plaintiff alleges he lacked the requisite mental capacity to timely file his complaint but later regained capacity, and the time period for filing the complaint should be tolled during the time he allegedly lacked capacity. He also claims his constitutional due process rights entitled him to an evidentiary hearing regarding his alleged incapacity before dismissal of his pleading.”
Overall, the court affirmed the opinion issued by Hudson County Superior Court Judge Kimberly Espinales-Maloney on August 6th, 2021, about a year-and-a-half after the court reversed a ruling that said Michael J. West committed terroristic threats against Gonnelli.
They ruled that the state had not defined what the phrase “cap his ass” meant, both Gonnelli and West testified they were unaware of what the phrase meant, and therefore had no definitive proof of harassment or a threat.
“Based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony, and all the favorable inferences drawn from that testimony, no reasonable fact-finder could find [West] guilty of harassment beyond a reasonable doubt,” the appellate ruled at the time.
However, Friday’s ruling indicated that West, nor the other courts, had proven/shown that he was mentally incapacitated for two years after the incident, as well as that he could not demonstrate any of the elements of malicious prosecution.
Those four elements are showing that criminal action was instituted by the defendant against the plaintiff, it began due to malice, there was no probable cause, and that it ended favorably to the plaintiff.
They also assert that he did not address a lack of probable cause, which they indicate is “fatal to his claim.”
“The trial court properly concluded counts one and two of plaintiff’s complaint were time-barred and count three failed to state a claim for malicious prosecution,” they concluded.
“On this record we see no basis to disturb the trial court’s decision to dismiss the complaint.”