On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 21-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Graves.
Defendant, Richard Sedell, was charged in Union City Municipal Court with resisting arrest, N.J.S.A. 2C:29-2a, and disorderly conduct, N.J.S.A. 2C:33-2a.*fn1 Following a municipal court trial, defendant was found guilty of disorderly conduct but not guilty of the resisting arrest charge. On trial de novo, the Law Division judge found defendant guilty and imposed the same fine as previously set by the Municipal Court judge. Defendant appeals and we affirm.
The essential facts that gave rise to the charge of disorderly conduct are as follows. Defendant and two female companions, Natalie Hawkins and Amber Rac, spent the evening together in New York City at an Irish bar, listening to a band and drinking alcoholic beverages. Around midnight, the three took a cab back to New Jersey. According to Hawkins and Rac, after the cab driver took a wrong turn in New Jersey, he refused to take them farther without payment of more money.
Meanwhile, Officer Paynter*fn2 was on patrol when he saw the three occupants exit the cab and heard yelling and screaming. According to Paynter, he saw defendant spit on the windshield, slam both his fists on the hood of the cab, and then reach over to the passenger side windshield wiper and bend it back, damaging it. Paynter exited his patrol vehicle and asked the three occupants of the cab to calm down. Paynter described defendant as being "highly intoxicated." In order to separate the three from the cab driver, Paynter asked defendant and the two females to go to a nearby fence. Defendant and the cab driver continued to yell at one another. Paynter asked both the driver and defendant to calm down and requested that defendant keep his hands on the fence. Paynter called for backup.
Responding to the back-up call, Officer John Mulvaney arrived at the scene. He noticed defendant and the two women by the fence. He described defendant as waving his hands in a wild manner, turning from the fence and around toward Paynter, despite Paynter's request to keep his hands on the fence, all the while complaining, "I didn't do anything." Paynter eventually placed defendant under arrest based upon the damage to the cab and defendant's continued failure to follow his directions to calm down and stay by the fence. After being arrested, defendant kept his hands in front of his body in an attempt to prevent the officers from handcuffing his hands behind his back. According to both officers, defendant did not complain of any pre-existing injuries at the time he was handcuffed. After they placed defendant in the patrol car, he advised the officers that he had had surgery.
Defendant called three witnesses. Dr. Frank Bello, a chiropractor, testified that defendant had dislocated his left shoulder in a fall off a scooter two days prior to his arrest. Sometime after defendant's arrest, an MRI revealed a fracture and additional injury to defendant's shoulder. According to Bello, based upon his earlier examination, defendant would not have been able to wave his arms without great pain and could not lift his hands over his head. Bello acknowledged that he was paid $1500 to testify in municipal court.
Hawkins and Rac confirmed that defendant bent the windshield wiper on the cab after the driver stopped the cab and refused to take them home or give money back to defendant. Contrary to the officers' testimony, Hawkins and Rac testified that defendant told the officers that he had had shoulder surgery and could not lift his arms high on the fence. They did not consider themselves or defendant intoxicated at the time.
On appeal, defendant raises the following legal argument:
THE STATE FAILED TO PROVE THE ELEMENTS OF DISORDERLY CONDUCT BEYOND A REASONABLE DOUBT.
Defendant maintains the evidence was insufficient to establish fighting, threatening, violent, or tumultuous conduct. He argues that the testimony of the police lacked credibility because their reports did not indicate that defendant stepped toward Paynter while at the fence or that he raised his hands to hit the cab. He also points to inconsistencies in Mulvaney's testimony on direct that defendant was yelling and flapping his hands while at the wall and on cross-examination that defendant was shouting but not flapping his arms in the air. Finally, he asserts that arresting defendant because he failed to calm down would support resisting arrest rather than disorderly conduct.
N.J.S.A. 2C:33-2a makes it a petty disorderly offense if a person, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [e]ngages in . . . violent or tumultuous behavior." Noting defendant's forceful conduct toward the cab together with his yelling and waving of his arms, the Municipal Court judge found that the ...