On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. 07-63.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Coburn and Waugh.
Defendant appeals from the conviction on trial de novo of obstruction of justice, N.J.S.A. 2C:29-1, and resisting arrest, N.J.S.A. 2C:29-2a(1). The conviction for disorderly conduct, N.J.S.A. 2C:33-2a(1) and -2b, was merged into the obstruction conviction.*fn1 On this appeal defendant contends that he is entitled to a judgment of acquittal on the obstruction charge "because [he] committed no physical act which interfered with Bradley Beach Police Department activity" and "because the State failed to prove the requisite elements of obstruction and the lower court's interpretation of N.J.S.A. 2C:29-1 represents an overbroad violation of the First Amendment." He further asserts that the municipal court "erred" in merging the disorderly conduct conviction with the obstruction violation because he "did not commit either offense," and that the resisting conviction was not proven beyond a reasonable doubt and was against the weight of the evidence. No issue is addressed to the sentences imposed on the obstruction and resisting arrest convictions. Under our scope of review, we must affirm the convictions.
Both parties presented numerous witnesses in the municipal court. We briefly recite the relevant testimony of some of the witnesses:
On June 16, 2006, defendant arrived at Barry's Tavern in Bradley Beach between 9:00 and 9:30 p.m. While there he drank five to seven glasses of beer, but testified that he was not drunk when he left. Defendant left the bar at approximately 2:00 a.m., closing time, to walk to his home that was "four or five blocks" from the Tavern.
When defendant left the Tavern, he noticed "a young fellow," Jeffrey Barnes, "on top of a car carrying on" and he told Barnes "he should get off the roof of the car and stop yelling because the Bradley Beach cops will probably be here soon and they don't play around." Barnes had been in the Tavern since approximately 9:30 p.m., had consumed approximately ten beers and "a couple shots of Tequila" and admitted to feeling intoxicated when he left the bar at 2:00 a.m.
Prior to arriving at the Tavern, Barnes had an argument with his girlfriend, Jacqueline Volante.*fn2 Volante had arrived at the Tavern around 2:00 a.m. to prevent Barnes from attempting to drive home. Volante testified that Barnes was "getting in the car ready to leave," when she saw him, but Barnes testified that he was waiting for friends to come and pick him up.
Barnes' cousin, Jessica Lewis, arrived in front of the Tavern and offered him a ride, but Volante prevented him from entering Lewis' car. As a result, Barnes climbed on the hood of Lewis' car and (according to Barnes) "in a 'jokeful' manner" told her to pull away while he held onto the hood. It was at this point that defendant came upon the scene. Volante observed that defendant was "slurring his words" as he told Barnes to get off the hood. Barnes believed that defendant was not aggressive when he approached Volante, and Lewis described defendant as trying "to diffuse the situation." Volante testified that defendant was in no way rude to her.
Shortly after defendant had approached Barnes and Volante, Officer William Major of the Bradley Beach Police Department arrived at the scene in response to a call to the police. Major, who "knew" defendant "before this incident," began to investigate what was going on. Patrolman Terry Browning also arrived at the scene approximately twenty or twenty-five seconds after Major.
Major testified that defendant "continuously interrupt[ed]" Browning as he was conducting his interview of Volante. Volante testified that Browning asked defendant to leave the scene approximately three times, but that he did not. According to Volante, "the officer asked him to walk away, to just leave . . . [a]nd he -- he didn't want to leave." He did not leave even after being told that he would be arrested.
Browning testified that he asked defendant if he was a friend or relative of Volante to which defendant stated "no, but I'm important around here and I've already settled this matter." Browning also noted that "a strong odor of alcoholic beverage [was] coming from his breath . . . [h]is eyes were bloodshot and watery . . . [h]is hand movements were slow and fumbling . . . [h]is speech was slurred . . . [and] he swayed as he . . . spoke[.]" Browning then directed defendant to "move along" to which he responded by saying "I'm not going anywhere." In the words of Browning:
A: Again, this -- he again said that he's not -- I'm not doing anything wrong, I'm trying to help out here, you better be careful how you're talking to me. At this point now, he's violently pointing his finger at my face saying, you don't know who you're talking to, you better watch how you're talking to me.
Q: How close to him physically [are you] at this point?
A: I'm still a matter of a foot or two, but his face or his finger is that close to my face, prompting me to put my hand up to avoid getting poked in the eye, saying, listen, you need to move along or you're going to be arrested.
Q: Now, did the defendant's demeanor change when you told him that he had to move ...