Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Goldmann, S.j.a.d.
[102 NJSuper Page 190] Defendant was convicted in Newark Municipal Court on three charges of assault and battery under the Disorderly Persons Act (N.J.S. 2 A:170-26). Two of these involved police officers acting in the performance
of their duties and one defendant's three-week-old child. He was also convicted for resisting arrest, a violation of the local ordinance. In sentencing defendant the magistrate imposed four consecutive nine-month terms of probation in lieu of confinement in the county jail. As to two of the charges, defendant was ordered to pay a fine of $1 a week for 18 months of the probation period.
Defendant appealed to the County Court, R.R. 3:10-2, where the matter was considered de novo on the record made before the municipal magistrate. R.R. 3:10-10(a). After hearing oral argument, the county judge found defendant guilty and imposed the same penalties as before.
Before proceeding to the facts, we observe that defendant challenges certain of the magistrate's factual findings. The claim is misdirected and may not be considered here, for this appeal is from the County Court judgment. R.R. 2:2-1(b).
While on patrol duty on January 13, 1967, Newark police officers Schmaltz and Yscamp received a radio call at about 5:17 P.M. to investigate a boyfriend-girlfriend dispute. They at once drove to the address given by the police dispatcher and were met at the side entrance by Eva Getter, who identified herself as defendant's wife. Only later did it appear that she and defendant were not married, but were living together with their newborn child. One of the officers testified that upon arrival he observed that Miss Getter "was worried and she was in hysterics." She said she had been locked out of her apartment after a fight with defendant and exclaimed, "All I want is the baby, my baby and my clothes so I can move out."
Miss Getter directed the officers to the door of the apartment, located a few feet from the side entrance to the building. Defendant answered the doorbell but refused admission to the officers and Miss Getter. Yscamp testified that defendant began screaming and yelling at them, although they had explained they would like to talk to him about his
problem and help out. Defendant shouted, "You don't have a search warrant and you can't come in here," and with this he slammed the door in their faces. The officers turned to Miss Getter in an attempt to find out what was the matter with the man -- had he been drinking or was he crazy? Her answer was unresponsive; all she kept repeating was her hysterical demand for her baby.
Unable to learn anything more. Yscamp again rang the doorbell. On cross-examination Yscamp described his thoughts at that moment:
"We were concerned about the baby. This was the main concern. It was her concern and it was our concern, the baby."
Pressed further, he testified that on the basis of the facts before them, they feared for the child's safety:
"We had concern for the baby. She [Miss Getter] was near hysterical. She wanted the baby. With the condition of this guy answering the door, yelling and screaming, we were concerned for the baby. This was the main reason why [ we rang the bell again ], if the baby was in there, the baby's life might be in danger.
Q. Any idea about the baby's life being in danger was your idea? A. No. She made us believe that by the way she was acting, by her concern. She wanted the baby.
Q. She wanted the baby. A. She wanted the baby. This was her concern. It was our concern to find out how the baby was." (Emphasis supplied)
After the second ring defendant again opened the door, this time only a few inches. The officers told him (and repeated several times) that they only wanted to talk to him: "We'd like to talk to you. We don't have to come in. We'll talk to you right here." They received the same answer as before. This time, however, as defendant tried to slam the door its movement was abruptly halted by Yscamp's foot just inside the doorframe. Defendant three times slammed the door against the officer's shoe in unsuccessful attempts to close it. Upon his third failure defendant, a powerful
6'2" man weighing more than 190 pounds, suddenly threw the door wide open, struck out at the officers, and with his fist hit Schmaltz in the head. Miss Getter became even more hysterical than when defendant had slammed the door the first time.
Both officers immediately grabbed at defendant and pushed him into the apartment. As the officers seized him, he punched and kicked as he fought them off. The struggle inside the apartment continued for five minutes, defendant violently resisting every attempt to subdue and handcuff him. Miss Getter stood by, screaming. The three men grappled on the floor, with the officers trying to get defendant's hands behind his back in order to manacle him securely. They at last managed to get the handcuffs on, but only with defendant's arms in front of him. In the course of the melee Schmaltz struck defendant with his service flashlight.
Defendant was finally subdued and held on the floor in prone position, with Yscamp sitting on his back. Schmaltz then went outside to radio for assistance. At this point defendant somehow managed to get up and, despite efforts to restrain him, ran into the bedroom where the child was lying on the bed. Miss Getter resumed her screaming, and after defendant had picked up the child and returned to the living room Yscamp yelled at him to release it. Another struggle ensued, defendant (despite the handcuffs) squeezing the baby around its middle and holding it over his head, with Yscamp grasping defendant by the neck and Miss Getter trying to wrest the child from defendant's hands. The testimony was that at one point defendant yelled, "If they don't let me go, I'm going to kill him, kill my baby. * * * They're not going to take my baby away."
Hearing the screams, Schmaltz returned to the apartment. The officers managed to get the child from defendant, and as they turned it over to Miss Getter, she cried out, "You killed my baby, you killed my baby," before exiting to a neighbor's apartment. And when she handed the child to her neighbor she said, "Oh, he's dead. I know he's dead
because he's all blue in the face." The neighbor testified that she observed bloodstains on the child's neck and marks on its body.
Eventually, other police arrived and defendant was removed to the police station. Miss Getter and the baby were taken to a local hospital to have the child examined. The hospital report shows that she told the nurse that the father had tried to choke the baby.
The condition of the apartment following the affair was silent witness to the violence of the struggle that had taken place there. The living room and bedroom were in total disarray, furniture broken, pieces of glass from a shattered ashtray were littered about, and bloodstains were visible in several places on the floor.
At the police station defendant was very uncooperative in giving his name and other required information. One officer noticed blood on defendant's pants leg and rendered first aid to a laceration below the kneecap. Defendant appeared to be ill and was taken to a hospital where he was treated for the laceration and concussion. He remained hospitalized for two weeks.
We note that before trial in the municipal court defendant had brought a civil action against the two police officers (and others), seeking damages for the injuries he allegedly suffered at their hands. A substantial part of the voluminous record before us appears to have been made with the civil suit in mind, even though the outcome of this appeal can have no direct bearing on that matter.
Defendant's version of the incident differs markedly from that related by the prosecution witnesses. He testified that the officers were disrespectful even before he first opened the door, and after he had answered their ring they cursed him for not opening the door. He also alleged that the officers pushed the door open after his unsuccessful attempts to close it, and that as soon as they had done so they lunged at him, spouting curses. One of them began beating him about the head with a flashlight, while the other choked
him by putting an arm around his throat. Defendant categorically denied ever striking or even swinging at the officers. (Here mention should be made of the fact that Schmaltz, the officer who claimed to have been struck, was treated for mild concussion by the police surgeon.)
Defendant testified that the officer holding him let him get up from the floor just before he went into the bedroom where the baby was. After he had picked up the child, the officer began beating him again. Miss Getter, whose presence defendant claimed not to have previously noticed, began screaming, "My God, my baby is turning blue." However, when she asked for the child he handed it over to her. Defendant also testified to further brutality by the officers: kicking him after he had been subdued, burning his eyelash with a cigarette ...