On appeal from Superior Court of New Jersey, Law Division, Mercer County, 00-9-963-I.
Before Judges King, Lisa and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2003
Defendant Steven Brannon was convicted, after a jury trial, of third degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a), by using or threatening to use physical force or violence, fourth degree resisting arrest, N.J.S.A. 2C:29-2a(2), by flight, and fourth degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S. A. 2C:39-5d. He was also convicted, in a bifurcated trial, *fn1 of the fourth degree offense of certain persons not to have a weapon, N.J.S.A. 2C:39-7a. The jury acquitted defendant of two counts of third degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a), and third degree possession of a weapon, a knife, with the purpose to use it unlawfully, N.J.S.A. 2C:39-4d.
The court granted the State's motion for the imposition of a discretionary extended term of imprisonment on the third degree offense of resisting arrest, merged the fourth degree resisting arrest conviction and sentenced defendant to a term of eight years with a four year period of parole ineligibility. The court also merged the fourth degree unlawful possession of a weapon charge with the certain persons offense and imposed an eighteen month term to run concurrent with the extended term and levied the mandatory fines and penalties.
On appeal, defendant raises the following issues:
POINT I BECAUSE THE COURT PROVIDED THE JURY WITH AN ERRONEOUS DEFINITION OF THE TERM "PHYSICAL FORCE OR VIOLENCE," DEFENDANT'S CONVICTION FOR THIRD-DEGREE RESISTING ARREST MUST BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL ON THAT CHARGE.
POINT II THE SENTENCE OF EIGHT YEARS WITH A FOUR-YEAR PAROLE BAR WAS MANIFESTLY EXCESSIVE. THE MATTER MUST BE REMANDED FOR RESENTENCING TO A TERM NOT TO EXCEED SIX YEARS.
We agree that the trial court's definition of "physical force or violence," as an element of third degree resisting arrest, was erroneous. In the context of the evidence presented, we hold that this constituted reversible error.
The details of the initial interaction between defendant and police are not in dispute. On July 8, 2000 at approximately 8 p.m., while on patrol in the area of Hermitage Avenue and Bellevue Avenue in Trenton, police officers Stephen Varn and Steven Wilson observed an individual, later identified as defendant, sitting on his bicycle drinking beer. Because public consumption of alcohol is a violation of a municipal ordinance, the officers turned their unmarked police car around to issue defendant a summons. As the uniformed police officers approached defendant on foot, he discarded the beer bottle and attempted to leave the area on his bicycle. Defendant was also carrying a backpack. The officers immediately gave chase. Defendant fell to the ground but, in an effort to evade apprehension, attempted to run using the bicycle as a barrier between himself and Officer Varn. At this point the stories diverge.
According to defendant, who testified in his own behalf, he was nervous, tired and unable to run very far because he had been "drinking beer [and] smoking crack earlier that day." As he turned around, Varn ran past him, blocked his path and screamed for him to put his hands behind his back. As he asked Varn why he was being arrested, he was struck from behind and knocked to the ground by Officer Wilson. While on the ground, the two officers physically subdued and handcuffed him. He was then taken back to where the bicycle was lying and forced to kneel while the police searched his backpack. No contraband or weapons were found.
Thereafter, he was taken to the police vehicle and ordered to lay on the ground, face down. Again, according to defendant, when he protested, he was maced for no apparent reason. When the police asked if he had any weapons or sharp objects on his person, he responded by telling them exactly where all of the items were located. The police ...