On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Nos. 16084 and 16085 (consolidated).
Before Judges Ciancia, Parker and R.B. Coleman.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendants Michael Hamilton and Carol Knott were found guilty of the petty disorderly persons offense of defiant trespass, N.J.S.A. 2C:18-3b, following consolidated trials in both the municipal court and the Law Division. Although separate notices of appeal were filed with this court, we granted appellants' motion to consolidate the cases. At all times both defendants have been represented by the same counsel, and no factual distinctions of any legal significance have ever been asserted.
The essence of the defendants' position now, and as it was in the Law Division, is that they were charged with trespassing on municipal property owned by Princeton Township, i.e., the Princeton Sewer Operating Committee (SOC) when, in fact, the alleged violation took place on county property within the right-of-way boundary of a county road. This discrepancy allegedly constituted a defect in the prosecution that violated defendants' right to due process. Defendants further argue that defiant trespass cannot legally occur in the right-of-way of a public road. We find no merit in defendants' contentions and affirm substantially for the reasons given in the oral decision of Judge Bielamowicz sitting in the Law Division.
The gravamen of this matter was a protest by approximately two dozen citizens against a municipal deer-culling operation. On January 21, 2002, protestors, including defendants and an attorney who advised them, arrived at the entrance to the SOC property where certain aspects of the deer hunt were being staged and carried out. The township chief of police happened to be leaving the SOC property at the time. He testified that protestors were in the roadway blocking traffic. He called for assistance and other township officers, including Corporal Michael Cifelli, arrived shortly. Cifelli observed about twelve people in the SOC driveway. The attorney with the group was told that the group was free to demonstrate on the other side of the two-lane road but, if they returned to the entrance area of the SOC, they would be placed under arrest. The record reflects that these instructions were conveyed to the protestors, understood, and complied with. Corporal Cifelli repeatedly made it clear to the demonstrators that they were not to"return to that driveway." Judge Bielamowicz found, and the record amply supports, that defendants intentionally violated this restriction with the intent of being arrested in order to make their point to, among others, members of the press who were present.
As to defendant Hamilton, Cifelli described what occurred, starting on the side of the road where the demonstration was permitted:
A: Mr. Hamilton approached and requested the opportunity to inspect the butchering facility that was on location at the SOC property. I advised him at that time that I couldn't permit that and any arrangements for his desire to do so could be made through the mayor's office.
Q: And what, if anything, did Mr. Hamilton then do?
A: Mr. Hamilton then stated to me, "Well, I have no intention of resisting arrest." I responded,"Mr. Hamilton, as long as you don't put me in a position to do so, I have no intention of arresting you today."
Q: What was the next thing that occurred?
A: I turned and proceeded to walk back across River Roadway [sic] to ...