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State v. Heller

October 22, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GERALD HELLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MA-06-092.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2007

Before Judges S. L. Reisner and Gilroy.

After a trial in municipal court, defendant Gerald Heller was found guilty of the disorderly persons offenses of obstruction and resisting arrest, N.J.S.A. 2C:29-1 and N.J.S.A. 2C:29-2a, respectively. He was sentenced to a fine of $100 on each conviction, together with costs and other appropriate assessments. On a de novo appeal to the Law Division, defendant was found guilty of the same offenses, and the same sentences were imposed. We affirm.

On May 12, 2006, following his confrontation with Detective Kimberly Leavy and Patrolman Yu Kim of the City of Long Branch Police Department, defendant was arrested and charged with the two disorderly persons offenses. Prior to trial in the municipal court, defendant filed a motion to suppress evidence. Recognizing that the testimony on the motion and trial would be duplicative, the municipal judge, with consent of the parties, reserved on the motion until the end of trial, after which he found defendant guilty of both charges, impliedly denying the motion to suppress. The only witnesses who testified were Detective Leavy and defendant.

Detective Leavy testified as follows. The police department had received a telephone communication from the mother of two young females, ages ten and twelve, stating that on the date of the incident, an unidentified man had followed the two girls across a parking lot while they were walking to school and had reached out to grab one of the girls.*fn1 The girls had described the man by his skin color, facial hair, and clothing: a multi-colored shirt and brown shoes.

Leavy responded to the area of the alleged incident but did not observe anyone matching the perpetrator's description. After talking to one of the girls at school, Leavy returned to the general area of the incident and stopped defendant approximately one block from the place where the incident allegedly occurred because defendant matched the description provided by the girls, including his clothing.

Leavy approached defendant on the sidewalk, informing him that she was a police officer with the Long Branch Police who was investigating the described incident, and that he fit the description provided by the juveniles. She asked defendant where he had been, where he was going, his name, and for identification. While defendant informed Leavy that he had arrived in the City by train, intending to go to a nearby convenience store, he refused to tell her his name or provide identification. After continued questioning, defendant informed Leavy that his first name was Gerald but refused to inform her of his last name. Although defendant conceded that he had identification in his back pocket, he refused to give it to Leavy, becoming belligerent and uncooperative, and began to walk away.

As defendant walked away, Leavy accompanied him "asking him for his full name and a date of birth so that I could confirm his identification through dispatch." Defendant walked approximately thirty feet and stopped. Defendant then removed his wallet from his back pocket, clutched it, and refused to show it to Leavy. After further prompting by Leavy, defendant produced identification, flashing what he later described as his social security card, a Medicare card, and an old civil service card, but did so in a manner that prevented the detective from viewing it.

In the interim, Patrolman Kim arrived at the scene. Because defendant refused to state his last name, refused to properly show identification, and then proceeded to walk away a second time, defendant was placed under arrest for obstruction. After defendant refused to allow the officers to handcuff his hands behind his back and attempted to pull himself away from Patrolman Kim, he was charged with resisting arrest.

Defendant's version of events differed. Defendant acknowledged being approached by Detective Leavy who identified herself as a police officer conducting an investigation in a serious matter for which he met the profile. Although defendant saw that Leavy had a badge, he could not determine whether it was a "security badge or if it was some kind of scam." After Leavy informed defendant that she was going to arrest him if he could not show her identification, defendant told Leavy that he would show her his identification. After removing his wallet, defendant opened it, looked at it to make sure that his identification was visible, and then extended his wallet to Leavy, stating that he could not give it to her because it was the only identification he had. Defendant stated that Leavy looked at his identification long enough to know that it was proper and never asked him for his name because it was on his identification cards.

Defendant further testified that while he was standing with Leavy, a second police officer barreled into him, knocking him completely to the side, causing him to stumble but not fall. According to defendant, the second officer accused him of attacking Leavy. Acknowledging that things were getting a little "agitated," defendant told the police officers that he would defuse the situation by voluntarily accompanying them to the police station. Notwithstanding, the patrolman grabbed him with both hands, causing defendant to resist in order to prevent "having [his] elbow or [his] shoulder dislocated or broken." Defendant was handcuffed, placed into a police car, and taken to the police station, where he stated that he was advised for the first time that Leavy had been investigating an incident where two girls had complained that a man had followed them through a parking lot and had attempted to grab one of them.

The municipal court judge determined that: 1) Detective Leavy had received information that two young girls claimed to have been followed by a man who had attempted to reach out and grab one of the girls; 2) the description provided by the girls of the alleged perpetrator matched defendant, both physically and as to his clothes; 3) Leavy had the right to stop defendant after observing him in the area of the alleged incident; 4) Leavy had identified herself as a police officer and informed defendant of the reason for making the stop; 5) the stop was a mild, investigatory stop with Leavy being "rather accommodating of the defendant;" 6) the officer had reasonable, articulable grounds for making the investigatory stop; 7) Leavy asked defendant his name, but he refused to provide it; 8) defendant refused to ...


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