On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BMA-010-030-00.
Before Judges Pressler, Ciancia and Parrillo.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2001
Defendant William Brennan was charged with disrupting a public meeting, N.J.S.A. 2C:33-8, and defiant trespass, N.J.S.A. 2C:18-3b. He was found guilty of both offenses in municipal court and appealed to the Superior Court, Law Division. After a trial de novo on the record, Judge Joseph Conte found defendant guilty of defiant trespass, but not guilty of disrupting a public meeting. Appropriate fines, penalties and assessments were imposed.
On appeal to this court, defendant contends:
POINT I THE CHARGE IS UNCONSTITUTIONAL AS APPLIED TO THESE FACTS.
POINT II THE STATE CANNOT ESTABLISH NECESSARY ELEMENTS OF THE OFFENSE.
POINT III APPELLANT HAS AN AFFIRMATIVE DEFENSE.
POINT IV JUDGE CONTE COMMITTED CLEAR ERROR.
POINT V JUDGE CONTE'S OPINION WAS BASED UPON A TAINTED RECORD.
POINT VI APPELLANT HAS BEEN DENIED EQUAL PROTECTION.
We find defendant's contentions without merit and affirm his petty disorderly persons conviction for defiant trespass.
The events giving rise to the charges against defendant occurred at a January 4, 2000 meeting of the Teaneck Town Council.*fn1 Defendant, a Teaneck firefighter and former president of the firefighter's union, addressed the mayor and six other council members during the "public input" portion of the meeting. He criticized the township's employment of a particular law firm hired to assist the township in litigation with the firefighters' union. Defendant believed that firm had a conflict of interest. The mayor, who chaired the council, told defendant that that topic would be more appropriately addressed during the later "good and welfare" portion of the meeting. Defendant made a few more remarks and sat down.
When the "good and welfare" portion of the meeting took place, defendant was given permission to speak for three minutes, the customary time allotted. Defendant addressed himself to a labor contract issue that had gone to arbitration. The township had appealed some aspects of the award to the Public Employment Relations Commission and defendant took issue with that decision. He apparently believed the township's appeal was taken in bad faith and he specifically criticized the township's requests for a stay of the arbitration award. In that context, defendant said, "and on it goes. And that is what we call a lawless . . . lawlessness in this country." Councilwoman Kieliszek then expressed her displeasure at defendant's use of the word lawless. A short dialogue between defendant, the councilwoman and the mayor then ensued, followed by a dispute between defendant and the mayor as to whether defendant had used up his three minutes of speaking time. Defendant was instructed to sit down, but refused to do so until he had finished speaking. The mayor said if defendant did not sit down the police would remove him. Defendant responded, "[y]ou get the police in here because I am not finished." The mayor "warned" defendant again and defendant said, "[l]et them come . . . bring them on." A council member suggested a recess. Defendant contended he had not used his allotted speaking time because he had been interrupted. The mayor told defendant he was discourteous, abrasive, immature and antagonistic. Defendant made an additional comment to the effect that "[w]e will do everything we can to make sure" that the mayor's term would soon be finished. Defendant then said he would sit down and apparently did so. A recess was called and the mayor pushed a silent alarm button notifying the police that they were needed.
At trial, the mayor, five council members and the township manager who was present during the meeting, testified to their perceptions of what had occurred, including defendant's demeanor. We need not detail that testimony, but the consensus was that defendant was agitated, upset and red in the face. Some of the witnesses described him as menacing, alarming, rude, disrespectful, frustrated and "tending to be disruptive." There was a concern that the situation was getting out of hand.
Defendant did not testify at trial, but he presented two witnesses who were present at the meeting and one who had watched it on a local television channel. One witness, defendant's wife, testified that defendant's demeanor was "normal" and, although he was "upset" at not being allowed to continue speaking, his demeanor really did not change. Rather, in her opinion, it was the mayor who became agitated and angry. The two other defense witnesses did not testify specifically as to defendant's demeanor and conduct prior to the arrival of the police, except to note that defendant had made no threatening gestures toward the council.
Two of the officers who arrived at the council shortly after the alarm was pressed were Sergeant Thomas Sullivan and Patrolman Thomas Finley. Sergeant Sullivan testified that, upon his arrival, he spoke with the mayor and the township manager was also present:
I asked him if there was a problem and he had told me that Mr. Brennan was acting irrational and that they had to stop the Council meeting and that they wanted -- they wanted him to be removed from the meeting.
Q: Had any of the other officers --
THE COURT: Again, I didn't hear that. They wanted him --
THE WITNESS: To be removed from the meeting so that they could continue with the meeting.
Q: Had any of the other police officers already gone into the Council chambers?
A: Yes. Officer Finley had and I believe Officer Abraham was with him.
Q: Okay. After you discussed this with Mayor Ostrow, what if anything did you do?
A: I asked the Mayor for the specifics as to what had occurred. He had said Mr. Brennan had gone beyond his allotted time, was using obscenities and using an alarming conduct of voice towards the Council members, and that he was interfering with the meeting and that, you know, they would like him to leave the meeting. At that time, I went inside and I spoke with Mr. Brennan, who was seated in the front row.
Q: Did you know Mr. Brennan?
A: Yes, I know Mr. Brennan. I asked -- I advised him that he was going to have to leave the meeting. That I was told by the Mayor that he was interfering with the meeting and its progress and I asked him to please leave the meeting.
Q: What was his response?
A: He said we would have to drag him out of there. That he ...