On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Pressler, Scalera and Stern.
Defendants appeal from their convictions on trial de novo in the Law Division.*fn1 We reverse and vacate the convictions of both defendants.
Briefly stated, defendants were arrested for chronologically related offenses on September 15, 1985. Joan Garrison (Joan) was charged with drunk driving, N.J.S.A. 39:4-50 (DWI) and consumption of alcohol by the operator of a motor vehicle, N.J.S.A. 39:4-51a. As a result of events related to the stop of the vehicle and detention of Joan, David Garrison (David) was charged with resisting arrest, N.J.S.A. 2C:29-2, simple assault upon a police officer, N.J.S.A. 2C:12-1a(1)*fn2 and an ordinance
violation. The resisting arrest complaint against David charged him with
Ultimately, defendants were tried jointly in the Winslow Township Municipal Court. After a lengthy trial, the municipal court judge rendered a detailed opinion in which he concluded that there was inadequate proof of actual consumption of an alcoholic beverage in the motor vehicle and therefore acquitted Joan of that charge. However, he found the officer who stopped her, Officer Linardo, to be credible, and found Joan guilty of D.W.I.
With respect to David, the judge dismissed the ordinance violation because it had not been properly filed, ". . . namely that it was not sworn to before a neutral person." The judge found that David provoked a second police officer, Officer Stowell, who did not testify but who had attended David at the scene of the stop while Officer Linardo was involved with Joan, and that David became disruptive by refusing to exit the motor vehicle. A confrontation developed between David and Stowell, requiring Linardo's attention, according to the judge
[a]ll because of the behavior of Mr. Garrison who in my view provoked all this by refusing to get out of the car by his own admission . . . In my opinion, the elements of this Statute have been proven. Purposely he was preventing these officers from making their lawful arrest, kicking, spitting and struggling with them. He had no right to do so.
In the absence of testimony from Officer Stowell, the judge found a reasonable doubt and acquitted David of the assault charge, but convicted him of "attempting to prevent these officers from doing their job."*fn3
After non-custodial sentences were imposed on the convictions, defendants appealed to the Law Division. Following a thorough evaluation of the record, the Law Division judge concluded that there was insufficient proof to convict Joan for drunk driving, stating that
I do find her not guilty of that offense but will find her guilty of an included offense of violating 39:4-66.1 which provides as follows: "The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway." I think there's no question in my mind beyond any doubt at all that she violated that statute by failing to give the right of way to Officer Linardo because I think she never saw ...