On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-01-87.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Gilroy.
On January 15, 2005, defendant Robert C. Griglak was charged by a Bergen County Grand Jury with third degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count one), and third degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a) (count two). The indictment arose out of events occurring outside of Fatso Fogarty's bar in North Arlington on August 20, 2004.
That night at approximately 12:52 a.m., the police were called to the bar for an unrelated incident and were questioning two individuals outside when defendant walked in between Officer Sean MacDonald and the individual he was interviewing. Defendant stated, "Hi, Officer, what's up?", or words to that effect, to Officer McDonald. Defendant also allegedly gave one of the suspects a "high five" with his knuckles. Officer Robert Evans, Officer MacDonald, and Sergeant Sean Carroll all told defendant to leave the area multiple times. Defendant responded that he "was not doing anything" and that "all I did was say hi." Sergeant Carroll instructed the bouncer at the bar not to allow defendant and his friends back into the bar.
Defendant and his friends briefly left the area, retrieved an audio tape recorder from their car, and returned. Defendant proceeded to tape some of his exchanges with the police officers. These audio tapes, as well as video tapes made from cameras in police cars at the scene, were played for the jury at trial. In them, defendant is heard protesting to the bouncer that he had not done anything wrong and should be allowed to go into the bar. Sergeant Carroll again instructed defendant to leave.
After further conversation, Sergeant Carroll decided to arrest defendant. He testified that he told defendant he was under arrest, and that defendant responded by striking Sergeant Carroll with his right hand in the neck and throat. Sergeant Carroll attempted to place defendant in a "compliance hold" in order to handcuff him. However, while attempting to secure defendant's arms, both individuals fell to the ground, with Sergeant Carroll believing that defendant deliberately caused the fall. Thereafter, Officer Evans successfully placed the handcuffs on both of defendant's hands and he was transported to police headquarters.
After the incident, Sergeant Carroll was examined at the hospital that day and was released to return to duty. The following day, Sergeant Carroll was examined by his private physician and diagnosed as having suffered a torn cartilage and tendon in his right wrist, torn cartilage in his right knee, and a torn rotator cup. He was not certified to return to duty for eight weeks.
Following a trial before a jury, defendant was found not guilty of count two, third degree aggravated assault on a police officer. Defendant was found guilty of a lesser-included disorderly persons offense of resisting arrest on count one. The court initially imposed a one year probationary term, subject to thirty days in the county jail, but subsequently reduced the custodial term to six days, crediting defendant with time served.
On appeal, defendant argues:
POINT I: THE TRIAL COURT IMPROPERLY BARRED CROSS-EXAMINATION OF THE COMPLAINANT RELATING TO HIS SICK TIME CLAIM AND WORKER'S COMPENSATION CLAIM AS A RESULT OF DEFENDANT'S ARREST.
POINT II: THE TRIAL COURT IMPROPERLY BARRED CROSS-EXAMINATION OF THE COMPLAINANT'S IMPROPER EXPERT TESTIMONY THAT THE MANNER IN WHICH DEFENDANT FELL TO THE GROUND WHILE ...