On appeal from Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal Nos. 40-09-06, 42-09-06 and 43-09-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, S.L. Reisner and Baxter.
Defendants Angela Metler, Albert Kazemian and Janet Piszar were convicted in the municipal court of Vernon Township of various disorderly persons offenses related to their attempts to interfere with a bear hunt at the Waywayanda State Park (Park). In an appeal de novo to the Law Division, their convictions were affirmed on August 31, 2006, and it is from those orders that defendants appeal.
In particular, all three defendants were convicted of hindering or preventing the lawful taking of wildlife, a petty disorderly persons offense, N.J.S.A. 23:7A-2, and disorderly conduct by purposely causing or creating a risk of public inconvenience or annoyance, a disorderly persons offense, N.J.S.A. 2C:33-2(a). In addition, Metler and Kazemian were also found guilty of obstruction of justice by purposely preventing or attempting to prevent a public servant from performing his or her duty, a disorderly persons offense, N.J.S.A. 2C:29-1(a). Finally, Kazemian was also convicted of resisting arrest, a disorderly persons offense, N.J.S.A. 2C:29-2(a).
The Law Division found defendants guilty of the same offenses of which they were convicted in the municipal court; however, the Law Division modified the sentences by merging the convictions for disorderly conduct with the convictions for interfering with hunting. As to Kazemian, the judge merged the conviction for obstructing an officer with the conviction for resisting arrest. With respect to Piszar, the court merged her conviction for disorderly conduct with her conviction for interfering with hunting. Appropriate fines and penalties were imposed against all three defendants. Because these convictions represent defendant Metler's fourth conviction for hunting-related offenses, the Law Division also imposed a sentence of forty-eight hours in the county jail and eight days in the Sheriff's Labor Assistance Program. The custodial portion of Metler's sentence has been stayed pending appeal. We affirm.*fn1
On December 7, 2005, Officer Walter Sanford of the New Jersey State Park Police was dispatched to the Park to investigate complaints of hunter harassment during a State-authorized black bear hunt. Sanford was working under cover wearing camouflage clothing and sporting a hunting license and a shotgun. When Sanford entered the woods, he came upon two hunters whom he did not know, John White and William Devine; Devine was White's father-in-law. Sanford accompanied Devine and White in order to appear inconspicuous to anyone intending to disrupt the hunt.
At a point about 500 feet along the trail from the parking lot, Sanford, Devine and White encountered a group of "five or six persons" later identified as including the three defendants, Fritzges and another woman. All five were, according to Sanford, just "milling about" approximately 200 feet ahead of them. The five headed toward the hunters and when they got within "normal talking distance" began to "walk around us, haphazardly." When Devine or White asked defendants and the others what they were doing, they responded that they were bird watching.
As Sanford, Devine and White continued along the trail, defendants and the other two women began following them, eventually forming a sort of "horseshoe type formation" at the hunters' sides and in their rear. Members of the group maintained a distance of about ten to twenty feet, and while they did not talk, they "were making a lot of noise," "just general hooting type things, annoying things, yelling to one another, oh, look, look at this, look at this."
According to Sanford, this behavior continued for between five and ten minutes, with the hunters, Sanford and defendants walking down the trail. He described what happened next: "They blatantly started to show their -- their true intentions, such as saying you hunter killers. You're -- you shouldn't be here. You're killing our bears. You shouldn't be hunters. They hope that we die. All kinds of condescending things. Interfering in the hunt." Sanford "suggested to Devine and White that they move off into another direction." They did so, but to no avail. Defendants continued to follow them.
According to Sanford, all the people in defendants' group were still "saying things," at points "out of control yelling, [a]lmost lunatic yelling." In fact, Metler "was screaming at the top of her lungs. It was kind of eerie. It was just ridiculous." Piszar was doing "loud boisterous things," saying "[g]o away, don't kill our bears." Metler, in particular, used "irrational screaming and foul language" and asked the hunters "how would you like this done to you." All three defendants "yell[ed] and scream[ed]" and uttered "anti-bear hunt protest[s]." Sanford testified that "wildlife doesn't like loud noises," and that the "hooting and the yelling" would clearly interfere with bear hunting. He commented, "bears do not want to be around humans, if they can help it."
Sanford, who had a camera, began taking photos of the two hunters and the group members at different times as the incident continued. Metler, meanwhile, videotaped some of the events as well. Sanford and the other two hunters asked the group to leave them alone, but without success. They would "basically surround you and just followed you wherever you went" until "you were encased almost," and prevented from hunting. Sanford made another suggestion to change direction, and Devine and White agreed. Again defendants followed, continuing the same behavior.
Sanford observed Devine and White "starting to get a little . . . stressed there. And . . . it started to get progressively worse." For example, at one point Kazemian "became vocal," meaning he was "[t]elling you how he felt. You're killers, such for -- things like that." Sanford "tried to rationalize with them . . . to make peace almost, I begged them to leave us alone, for their sake." Sanford expressed that there were "people fighting overseas, you know, dying for this," and that the group could "voice your opinion in . . . a normal manner . . . and you can also hunt in a normal fashion, that's what's great about the United States." Despite Sanford's urgings to leave the three of them alone, defendants and the other two women persisted.
Kazemian then began "asking questions" such as where the hunters lived. At that moment, Sanford observed Devine and White were "becoming shaken up." Kazemian also "stated he should get his . . . friends to come hunt us down," and "started getting into the [sic] how would you like to be hunted." When Devine or White asked if such people would "come hurt our families," Kazemian "shrugged his shoulders and lifted his eyebrows" intimating, according to Sanford, an affirmative response.
Shortly after Kazemian made "the remark about having his friends hunt down the hunters," Sanford decided to identify himself. As Kazemian "stood against a tree," Sanford took off his hunting garb, revealing his uniform, which included a State Park Service patch on the shirt, badge, name tag, gun belt and sidearm. At that point, Kazemian was slightly above Sanford on a ledge. When Sanford told Kazemian he was under arrest, Sanford attempted "to take his hand to escort him down." Kazemian flung Sanford's hand away, knocking Sanford off balance. Sanford repeated his instruction that Kazemian was to come down from the ledge and put his hands behind his back because he was under arrest. Kazemian responded that Sanford was "nothing but a God damn . . . [f]--king ranger." He also told Sanford that "if you touch me one more time we're going to have a big problem."
Meanwhile, the women in the group "all took off" as soon as Sanford identified himself, despite his instruction to the group not to move and that they were under arrest. Sanford testified he made his directive "to everyone" and "it was made quite clear." Specifically, Metler was perhaps fifty to 100 feet from Sanford, and Piszar and Fritzges were approximately forty to fifty feet away, all facing Sanford when Sanford told "everyone to stop, you're under arrest" in a "loud, very loud tone." Metler, Piszar, Fritzges and the unidentified woman "fanned out" and were "disbursing [sic]." The two other hunters "were not doing anything basically but standing there with their jaws open."
Kazemian, who did not flee, replied to Sanford that "if you handcuff me, I will fall, split my head open and sue the State," at which time Sanford considered using pepper spray against him. Sanford became alarmed that "it was going to get out of control at that point." Consequently, he called on his police radio for backup, describing the number in the group that was fleeing and the direction they were headed. Three or four additional State Park Police officers quickly arrived. As soon as they did so, Kazemian "decided to comply." Sanford determined he would not handcuff Kazemian because Kazemian "decided to walk along with [him] in a civil manner."
Metler and Piszar, who did not stop when ordered to do so, "had to be pursued" in order to be apprehended, with Metler, in particular, "high tailing it." As the other officers approached, they yelled several times for the women to halt, saying "stop," and "[p]olice" while Sanford stayed with Kazemian. Sanford estimated that Piszar, Fritzges and Metler were approximately twenty-five feet away until Sanford's partners got closer. At that point, the three "knew the game was over" and stopped. Metler, after moving twenty-five feet away, attempted to hide behind a large rock before being arrested. As we have described, the last member of the group was able to get away completely. Sanford charged defendants with hunter harassment, obstructing justice and resisting arrest.
The State also presented the testimony of Lieutenant Kelly Gottheimer of the New Jersey State Park Police, who was one of the officers who received Sanford's call for assistance. She and the other backup officers were able to reach the scene in only a minute or two. According to Gottheimer, Kazemian and Metler were "doing some talking" when she arrived and Kazemian in particular was "argumentative about the arrest," trying to engage Sanford and Gottheimer about the matter in an "elevated conversation," not calmly. While she could not recall if profanity was used and did not observe anyone "run away or flee," she did detect "too much movement," people were "walking around" and moving "[f]urther away."
White and Devine testified, corroborating Sanford's description of defendants' conduct and stating that by hollering, running around the woods, following them and "stalking" them, defendants' behavior interfered with their ability to hunt.
The defense presented two witnesses, Fritzges and Piszar, and also played Metler's videotape of the events. Fritzges, who was the first defense witness, acknowledged being in the Park on December 7, 2005, with the purpose to "document the aftermath of any bear being killed." She also acknowledged knowing Metler for approximately ten years, Piszar for eight years and Kazemian for two years. She, Metler and Piszar were members of the New Jersey Animal Rights Alliance (Alliance), an "educational organization" informing the public "about the suffering animals endure." The Alliance maintained an anti-hunting position. She and the other defendants had talked about the bear hunt as soon as it was announced and were displeased that it was going to take place. Fritzges denied intending to interfere with the hunt, or even knowing that any of the co-defendants ...