On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 26-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges Parrillo and Alvarez.
Defendant Earl Davis was found guilty, after a trial de novo in the Law Division, of disorderly conduct, N.J.S.A. 2C:33-2(a)(1), and resisting arrest, N.J.S.A. 2C:29-2(a). He appeals and we now reverse the former conviction and affirm the latter.
According to the State's proofs, while on patrol on February 5, 2005, at around 2:20 a.m., Officer James Citta observed a parked Ford Excursion with lights flashing in the lot near the Sawmill Bar located in a residential area of Seaside Park. After calling in the license plate, Citta approached the vehicle on foot and saw defendant inside, lying across the rear seat almost on the floor. He tapped on the window several times to get defendant's attention, and when he finally did, asked defendant to roll down the window. Defendant complied after the second request.
Citta noticed a baseball bat on the floor next to defendant, called for backup and ordered defendant out of the vehicle. Defendant questioned the reason for the request, but eventually opened the door and exited the vehicle. Defendant also refused at first to provide identification or to identify the owner of the vehicle. According to Citta, defendant was uncooperative and arguing about having to deal with this "fuckin' bull shit" and being harassed for no reason. Citta perceived defendant as taking an "aggressive stance." According to Officer Daniel Fitzgerald, who had arrived at the scene to provide assistance, defendant was yelling profanities and waving his arms around. At the time, because bars were closing, "there would have been some pedestrian traffic" in the area, although Officer Fitzgerald did not see any.
After being advised of the consequences if he did not cooperate, defendant was in fact told he was under arrest and to place his hands behind his back. Defendant refused and pushed Officer Fitzgerald in the chest while attempting to flee on foot. The two officers were able to grab him and wrestle him to the ground, where defendant continued to struggle. Eventually defendant was subdued with pepper spray, handcuffed, and taken to police headquarters, where he was issued a summons and released.
Defendant offered a different account. Earlier in the evening of February 4, around 6:00 p.m., defendant had two drinks at a friend's house and then went out to "clubs" with friends, ending up at the Sawmill and eventually another local bar, Jack and Bill's. Although he did not drink after leaving his friend's house much earlier that evening, defendant felt tired and wished to leave. So, after retrieving the keys to his friend's Ford Excursion, defendant unlocked it, turned it on with a remote starter, thus activating the vehicle's flashing lights, and awaited the return of his companions. Defendant then sat lying across the back seat with one foot on the floor while talking on the cell phone to his girlfriend. When Officer Citta arrived, defendant rolled down the window as requested, although he hesitated in exiting the car upon further command, fearful for his own safety because of the reputation of the Seaside Park police for beating people up.
Nonetheless, defendant exited the vehicle and questioned why he needed to produce identification, which, upon further request, he handed over to the officer. Defendant denied yelling, using profanity, waving his arms, or taking an aggressive stance. Instead, Officer Citta just grabbed defendant's arms and pushed him into Officer Fitzgerald after telling him he was under arrest and while his arms were behind his back. Fitzgerald then started punching defendant in the face and then both officers began punching and kicking defendant while throwing him to the ground. On the ground, the officers kicked and punched defendant again and stepped on him. Defendant was sprayed after being handcuffed.
In relying upon the State's version of events, the municipal court judge concluded:
I find, first of all, that the initial acts of Mr. Davis once he exited the motor vehicle, the tumultuous activities, the loud noises, the statements made, they're certainly done in a public area. The municipal parking lot at the north end of Seaside Park cannot be described as anything but a public area.
And I find that he, in fact, is guilty of the violation under 2C:33.2(a)(1).
I further find that there reached a point in time under 2C:29.2(a)(1) where he purposely ...