Decided: January 10, 1980.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NICHOLAS LOUIS DESANTO, DEFENDANT-APPELLANT
On appeal from the Hudson County Court.
Crane, Milmed and King. The opinion of the court was delivered by Milmed, J.A.D.
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Tried to a jury, defendant was found guilty of assault and battery upon a police officer, in violation of N.J.S.A. 2A:90-4(a).*fn1 On the conviction, he was sentenced to the Hudson County Penitentiary for a period of 18 months. The execution of 12 months of the term was suspended and he was ordered to be placed on probation for a period of two years following completion of service of the six months "balance" of the sentence.
On this appeal, defendant's single contention is that it was plain error for the trial judge to have denied his motion for a judgment of acquittal at the close of the State's case since the State failed to establish that the victim was a law enforcement officer acting in the performance of his duties. He maintains that although the victim, Patrolman Donald Verney of the Jersey City Police Department, was wearing his Jersey City Police uniform at the time of the assault and battery, he was "not formally on duty" since "he was acting as a private security guard, being paid by the promoters of the rock concert which had been scheduled that day" in Roosevelt Stadium. On the night in question, Officer Verney was patrolling the main gate of the stadium. He had been assigned to this off-duty job by his superior, the captain of his police precinct, after volunteering for the work. Police officers were required for that assignment. Those Jersey City officers who volunteered to work at the stadium during the rock concert were assigned to the task by the city, i.e. , upon approval by the police captain -- the only distinction between this job and the officers' regular employment being that the individual who requested the police protection, the promoter of the rock concert, rather than the city, was paying for the service. Defendant argues, in essence,
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that this distinction removes the police officer victim from the category of a law enforcement officer acting in the performance of his duty. He claims that Verney "was acting as a privately paid security guard" at the time and that his (defendant's) "conduct in the case at bar" could constitute nothing more than a simple assault and battery.
We have considered defendant's contention and the argument advanced in support of it in our review of the record submitted on the appeal. We find the issue raised by defendant to be clearly without merit.
Here, there is ample evidence in the record to support a finding of defendant's guilt of the crime charged in the indictment, beyond a reasonable doubt. The conditions prescribed in N.J.S.A. 2A:90-4(a) were met. Thus, (1) Officer Verney, a municipal police officer, was in uniform at the time; (2) he was exhibiting evidence of his authority and (3) he was acting in the performance of his duty as a law enforcement officer when the assault and battery took place.*fn2 See State v. States , 44 N.J. 285, 291 (1965). As the Supreme Court observed in Jasaitis v. Paterson , 31 N.J. 81 (1959):
See, also, State v. Coleman , 224 Kan. 447, 580 P. 2d 1329 (Sup.Ct.1978), and cases cited therein. There, the court was called upon to determine the propriety of defendant Coleman's conviction for aggravated battery upon a law enforcement officer (K.S.A. 21-3415), in light of defendant's claim that the statute did not apply "to a battery committed upon an off-duty police officer
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employed as a private security guard." 580 P. 2d at 1331. At the time of the incident, the victim of the attack, Officer Fuson, "who commonly worked as a full-time police officer for the city of Wichita," was working during off-hours as a part-time employee at a Woolco department store. Id. , at 1330. He was employed by the store "to look for and apprehend shoplifters." Id. at 1330-1331. Under the Kansas statute, K.S.A. 21 3415:
Aggravated battery against a law enforcement officer is an aggravated battery, as defined in section 21-3414, committed against a uniformed or properly identified state, county, or city law enforcement officer while such officer is engaged in the performance of his duty.
Aggravated battery against a law enforcement officer is a class B felony.
In affirming the conviction the Supreme Court of Kansas concluded that "under the factual circumstances in the . . . case, officer Fuson was engaged in the performance of his duty as a law enforcement officer at the time the aggravated battery was committed against him by the defendant." 580 P. 2d at 1333. It pointed out that:
The conviction and sentence under review are affirmed.