On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Approved for Publication July 16, 1997.
Before Judges Havey, Brochin and Eichen. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The opinion of the court was delivered by
Defendant William J. Kane was tried and convicted in the Manville Municipal Court for disrupting a public meeting (N.J.S.A. 2C:33-8) and resisting arrest (N.J.S.A. 2C:29-2). He was fined $250 for the violation of N.J.S.A. 2C:33-8 and $750 for violation of N.J.S.A. 2C:29-2, both disorderly persons offenses. For the latter violation, he was also sentenced to serve one day in the county jail and to complete ten days of community service. The jail sentence was suspended. Appropriate costs, fees and assessments were also imposed. After an appeal de novo to the Law Division, defendant's convictions were affirmed. The same punishments were imposed, except that the one-day suspended jail sentence was deleted.
The meeting which defendant was convicted of disturbing was an official hearing before the Committee on the Budget of the United States House of Representatives. Representative John Kasich, a congressman from Ohio who was chairman of the committee, presided. The meeting took place in a Veterans of Foreign Wars building in Manville, New Jersey. Spectators and participants filled the meeting space to capacity. The audience is said to have numbered a thousand persons.
Some of the speakers who were permitted to address the committee had been selected in advance of the meeting. Some were selected from the floor by committee staff. Defendant was the New Jersey Area Director of the United Auto Workers union and president of the New Jersey Industrial Union Council. Both before and during the hearing, he attempted to be recognized as a speaker. He was unsuccessful. He then tried to gain Representative Kasich's attention by addressing him in a loud voice from the floor. As a result, four or five policemen who were in attendance to maintain order seized him, carried him out, handcuffed him, and took him to police headquarters where he was charged.
The State presented its case through the testimony of four police officers. The first was Patrolman Darrin DeGraw. He was the first of the arresting officers to reach defendant after the first shout of "Mr. Chairman!" He testified that he "approached the subject along with Detective [Mark] Sniscak and asked him to please be quiet and be seated." According to DeGraw, defendant ignored him and continued shouting, "Point of order. May I get a chance to speak?" Defendant "continued yelling." The two policemen "advised [defendant] to be seated and he would be able to remain." Because he continued yelling, they told him he had to leave. He refused to leave and continued yelling. DeGraw testified Detective Sniscak "advised [defendant] he was under arrest" and, as they attempted to remove him, defendant "pulled back." Defendant continued to yell and would not be seated. Finally, DeGraw testified, when defendant refused to accompany them out of the hall, they grabbed his arm and, with the help of a third policeman, carried him out "flailing, kicking, struggling, yelling." In the parking lot outside the building, they put him over the back of a car, handcuffed him while he continued to struggle, frisked him and put him into a patrol car.
Three other police officers provided similar testimony. Detective Mark Sniscak generally corroborated Patrolman DeGraw's testimony, except that Sniscak testified to substantially longer time intervals between his hearing defendant's first shout of "Mr. Chairman!," his ordering defendant to sit down and be quiet, and his carrying defendant out of the hall. Patrolman John Granihan testified that he was dispatched to the Veterans of Foreign Wars building with his patrol car and that he drove defendant to the police station after his arrest. Patrolman Granihan did not observe any of the relevant events inside the building, but he corroborated the other officers' testimony that defendant resisted being handcuffed in the parking lot. Detective Michael Gilbert, who testified as a rebuttal witness, added that defendant had tried to kick him in the face while being carried out of the hall.
Defendant's own description of his attempts to attract the chairman's attention were not materially different from those provided by the State's witnesses. Defendant denied, however, that any policeman had said anything to him before removing him from the building. He also denied resisting the police, flailing or pulling his limbs away from them in any way except, possibly, pulling a policeman's hand away from his windpipe. He testified that he had not had any conversation with the police inside the hall, and that he had not been told that he was under arrest until he was being handcuffed in the parking lot outside.
Besides testifying himself, defendant presented the testimony of ten other witnesses. Their testimony was generally consistent with his. All but two of them were associated with defendant through their positions in a labor union or through some kind of labor union activity. One of the two who was not acquainted with defendant was the mother of one of defendant's associates. The other witness who was unacquainted with defendant was a retired editor of the New York Daily News. After observing defendant's arrest, he had approached defendant's attorney and offered to be a witness. He testified that after defendant had called out "Mr. Chairman" in a loud voice, "in nothing flat, policemen were there, grabbing the guy and hauling him out like he was a piece of lumber and it just appeared to me that it was a set up." This witness was not close enough to defendant to hear what, if anything, was said before he was taken out of the hall.
The municipal court Judge found that defendant had been shouting loudly while a witness was addressing, or was about to address, the committee; that a police officer had approached defendant and asked him to sit down and be quiet; that defendant had ignored these instructions and subsequent orders to leave; and that he had continued to shout. The Judge determined that at that point "defendant was effectively put under arrest" and "began to flail his arms and . . . resist"; that he was then lifted off the ground while he continued yelling, kicking and flailing his arms, and that, while being carried out, he had tried to kick Detective Gilbert "in the privates."
Two videotapes of portions of the committee hearing, prepared for news broadcasting, were admitted into evidence. One of these, broadcast over WWOR-TV, records scenes of defendant's seizure by the police and of his resistance to his arrest. The other, videographed for New Jersey Network News, records all or most of what took place at the podium during the meeting, including the chairman's reactions to what occurred. The audio portion of the New Jersey Network News videotape records defendant's shouts and other sounds associated with the relevant events. When an uproar was heard from the floor, the videocamera was turned toward defendant and it recorded him being carried out by four or five policemen. These videotapes are part of the record on appeal.
The Law Division Judge before whom this case was tried de novo on the record consulted these videotapes. He found that defendant stood and began shouting loudly as the chairman was talking about balancing the Federal budget; that the chairman addressed defendant, "Would the gentleman please . . . suspend, well no, to be quiet, okay;" that defendant was still yelling when the chair gave the floor to a witness; that the witness attempted to speak, but was interrupted by the defendant's yelling; and that defendant was then apprehended by the police. Significantly, the Judge also found that the chair ...