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State In re B.N.

Decided: January 25, 1968.

STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, IN THE INTEREST OF B.N., DEFENDANT-APPELLANT


Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

[99 NJSuper Page 31] Defendant, a 14-year-old juvenile, appeals from her conviction for resisting arrest and uttering

loud and offensive language, in violation of two ordinances of the City of Newark.

On October 7, 1966 Officers Peake and DeRogatis of the Newark police while on radio patrol were directed to a group of juveniles said to be congregated near an apartment building at 1907 McCarter Highway, Newark. Upon arriving there they found a group, composed mostly of girls, "milling around." Defendant and two other girls refused to heed Peake's direction that they move on. As he got out of the patrol car to place the three under arrest they fled in different directions. After he entered the apartment to investigate a complaint that a group of girls (which included defendant) had been harassing two other girls who lived there, defendant and her companions returned to the front of the building. Thereafter, when defendant was told that she was under arrest and Peake attempted to take her into custody, she started pulling, struggling, kicking, swinging and using foul language. It required the efforts of both officers to get her into the police car and restrain her there. She was subsequently charged with (1) idling and loafing, (2) resisting arrest and (3) using loud and offensive language, and was convicted of the latter two.

Defendant first urges that the convictions were erroneous because of the absence of proof of an intent to commit either violation.

We are not impressed by the argument advanced on behalf of defendant on this issue. The contention is that defendant's conduct was the emotional reaction of a child to unexpected police action -- not an intentional violation of any ordinance. Whether defendant possessed the guilty intent which was a prerequisite to a conviction was a question committed to the judge as trier of the facts. Implicit in his verdict of guilty was a finding that defendant possessed the necessary mens rea. We are satisfied that, considering the proofs as a whole, this finding finds adequate factual support in the record. State v. Johnson, 42 N.J. 146 (1964). There was evidence from which the trial judge could have concluded

that defendant had been involved in the harassment of the two other girls which had resulted in the dispatch of the police to the scene. Both officers were in uniform and in a marked police car. Their direction that the group disperse was disregarded by defendant. Although the proofs disclose that she was intelligent and thus should have known that the police officers were in the performance of their duty, she elected to thwart by physical force their efforts to arrest her, while punctuating her resistance by the loud and offensive language revealed by the proofs. From these facts he was justified in finding, as he impliedly did, that defendant's actions were not an impulsive reaction to fear but that she deliberately intended to do just what she was doing.

Defendant next challenges the Newark municipal ordinance under which she was convicted for using loud and offensive language as so vague and imprecise as to violate her rights under the First and Fourteenth Amendments to the United States Constitution.

The ordinance in question, CO 20:7A, provided that:

"Any person who commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:

'Uses loud, offensive, disorderly, threatening, abusive, or insulting language or who conducts himself or behaves in any offensive, disorderly threatening abusive or insulting manner.'"

Defendant relies principally upon Connally v. General Construction Co., 269 U.S. 385, 393, 46 S. Ct. 126, 128, 70 L. Ed. 322 (1926), where the following quotation from United States v. Capital Traction Co., 34 ...


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