July 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERRAMIAH HEALY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 10, 2008
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 along or be arrested?
A: Correct. As soon as I mentioned that he needs to move along or he's going to be arrested, he became very, very aggressive, very upset, violently pointing the finger, telling me that I better be careful how I talk to him, I don't know who he is, he's friends with my Chief, I better get him down here. I'm not going to --
Q: How many times before that warning had you told him to move along?
A: At least twice. I told him every time he interrupted. After I told him -- I'm sorry. After I realized that he wasn't a relative or a friend or actually involved in it, you know, I asked him to move along. And then at least twice I told him to move along and he kept saying, no, he's not going to move along.
Q: Did you curse at him?
A: No, sir.
Q: Now he's -- from what I understand, you say he's got his finger pointed in your face at this point?
A: Correct, correct.
Officer Major saw defendant "raise his hand and [begin] pointing at Patrolman Browning telling him that he wasn't arresting anyone tonight," and that "defendant was pointing at him."
Browning further testified that he "reached for the hand that was pointing at [him] and [he] grabbed it [and] [a]s [he] grabbed it, [defendant] violently jerked away." Defendant then accused Browning of "knock[ing]" over his wife and "squared off in a boxing stance." Browning attempted to grab defendant's arm after he "clenched" his fist, a "struggle" ensued and Browning and Major pulled defendant to the ground. Major secured one hand in a handcuff and Browning told the defendant to "stop resisting, put your arm behind your back." However, according to Browning, defendant continued to say "you're not arresting me," and "never" "volunteer[ed] his arm out from under his body to submit to arrest."
The struggle lasted "a couple minutes" during which time both Browning and Major told defendant that he was under arrest and to stop resisting "[a]t least four or five times." When defendant continued to struggle and not adhere to the instruction to "put your hand behind your back," Browning warned him to cease or he would use pepper spray. After warning defendant twice, Browning applied the pepper spray to his eyes. Barnes also testified that he saw defendant pointing at Browning with his finger "inches" away from Browning's face and that Browning did "nothing" to respond to this. Barnes then testified that defendant "pushed" Browning and "they got into the scuffle." Volante testified that defendant refused to leave when "the officer asked him to walk way," and that the officer warned defendant that he would be arrested if he did not.
According to Volante, defendant's wife said "you don't know who you're talking to, I know the Chief of Police," and an officer and defendant "wrestled" onto the ground as the officer attempted to secure handcuffs on defendant. Among the defense witnesses, defendant testified on his own behalf. Defendant testified that he did not point at Browning, but was instead pointing toward Volante in an attempt to explain what had occurred. He further testified that, in response, Browning "grabbed [his] right arm, [and] put it behind [his] back." He also testified that he was only warned "just once" to move along and that he was never warned that he would be arrested if he did not, although he "knew this guy was going to arrest" him. He stated that he did not leave the area because he "never got an opportunity to comply."
The municipal judge summarized all the evidence he heard as follows:
The police arrived. As we all know, the first thing the police do is separate people. That was done. Second police officer arrives. However, by now Mr. Healy has been asked to move on and he doesn't. He stays there and insists that the young lady hasn't done anything wrong. He then is told again to move on.
And then we get to the finger pointing. Several of the witnesses, both State and defense witnesses, testify that there was finger pointing. There are various versions ranging from Mr. Healy sticking his finger in the face of the police officer, Officer Browning, to pointing at a car, to pointing at Ms. Barnes. But, nevertheless, there's one of the common threads I was speaking of. Every -- not everyone. Many of the witnesses agree there was finger pointing.
All of the witnesses agree that the police officer grabbed for Mr. Healy's finger or wrist. Mr. Healy pulled it back. Many of the witnesses testify that he was --Mr. Healy was told that he should move on, that, if he didn't, he would be arrested. And finally, according to several witnesses, he didn't do that. He was warned three times. And finally, the police officer grabbed for his hand, as I said, that was pulled away. A second time he grabbed and was able to get a hold on his right arm and he was brought to the ground.
The officers testify that, at that point, he made it very difficult for the officers to get his -- get his second arm or hand to put the handcuffs on it. Several of the witnesses testify that there was a scuffle on the ground and that the officers had trouble cuffing Mr. Healy.
The testimony is conflicting as to the mace. The officers testify that -- there's no question in my mind, first of all, that mace was used. The only problem is when. It makes no sense to me that the officers would have used mace after they had the defendant on the ground with one officer's knee between -- at least between his shoulders, maybe on his neck, the other officer sitting on his back, the cuffs on the defendant, and then the witnesses would have me believe the mace was used. I don't believe that. I think the mace was used prior to the second -- Mr. Healy's second hand being cuffed.
There is testimony to that effect and that's the only logical conclusion. But that is not critical to my decision as to guilt or innocence of the various charges. At some point after pepper spray or mace was used the defendant became subdued and somehow got to his feet and was taken to headquarters.
So, did Mr. Healy resist arrest? He did resist arrest. He did so by not, number one, moving on when he was told to. Number two, by not submitting to being handcuffed and by scuffling with the officers when he was on the ground and forcing the officers to use mace in order to, if you will, get him under control.
Did he act as a disorderly person? I'm going to come back to that.
Did the Mayor obstruct justice. He did. He did so when he did not move on as he was told to. He did so when he waved his finger. Whether it was in the officer's face or in the vicinity, the result was the same. He was preventing the officer from carrying out his duty. The officers were unable to take care of, if you will, or deal with the reason why they were called to the scene. And that was the argument between now Mr. and Mrs. Barnes. So, in that regard, he did obstruct the administration of justice.
In the Law Division, Judge Anthony J. Mellaci concluded:
Here defendant argues that he did not resist arrest and the State cannot prove beyond a reasonable doubt that he did so. While it is clear to this Court that there are considerable discrepancies among the witnesses regarding defendant's behavior, this Court finds beyond a reasonable doubt that the defendant resisted arrest. This Court finds that both officers testimony was extremely credible both because it was consistent with one another, and because it was consistent with the transcripts of the radio transmission that evening.*fn3
Moreover, all the witnesses testified that when Officer Browning reached for the defendant's finger or wrist, defendant pulled away from him. The officer's attempt to grab defendant moreover, occurred only after Officer Browning told defendant that he must move on or be arrested. Defendant's own testimony corroborates same.
Certainly, defendant was warned that his continued conduct would cause Officer Browning to arrest him, and defendant ignored that warning and continued to conduct himself [i]n a manner contrary to that which he was instructed to do.
Finally, once defendant was on the ground, the officer's testimony that he refused to surrender his right wrist was hand -- for handcuffing. Again, defendant's own testimony corroborates these facts. Defendant stated he was worried about his glasses and repeated to the officers that "they were not arresting" him. Defendant would have this Court believe that this statement in this regard was made out of shock and disbelief of -- at the fact that he was being arrested, but this Court is not persuaded.
Certainly, while a person is being arrested, his comments to the arresting officers that they "are not arresting him" can fairly be attributed to his desire not to be arrested and his resisting of the arrest.
All of this testimony in addition to the considerable amount of alcohol consumed by the defendant and the credible testimony provided by the officers leads this Court to find beyond a reasonable doubt that the defendant resisted arrest by pulling away from Officer Browning, then by stating that the officers were not arresting him, and finally by refusing to surrender his wrist from beneath his body to be handcuffed.
In addition to physical interference, any conduct that prevents a police officer from performing his duties may constitute an obstruction. Here it appears that the defendant interfered with the police investigation. According to Patrolman Major's testimony, the defendant continually interrupted Patrolman Browning while he was attempting to ascertain from V[o]l[a]nte the cause of the dispute.
Officer Browning stated that he was unable to even speak with V[o]l[a]nte, because of the defendant's interference.
Further, Patrolman Major eventually was forced to cease the investigation of the situation because defendant Healy was "getting loud." Defendant was thereafter specifically asked by Patrolman Browning to move or -- on or face arrest to which he responded by pointing a finger at Patrolman Browning. This Court result -- this conduct resulted in a physical altercation with Patrolman Browning, in which Browning grabbed defendant's finger and pulling back from him, thereby inadvertently knocking over defendant's wife, who was standing nearby.
Clearly, defendant's verbal interruptions and refusal to leave the scene prevented the officers from conducting an investigation. This Court finds also that the defendant was aware that his conduct was interfering with the officer's investigation, because he was told repeatedly to leave the scene and did not follow instruction. In so doing, defendant caused the officers to cease their questioning of V[o]l[a]nte.
As result of the defendant's actions that evening, not only did the officers have to cease their investigation of the situation temporarily, but ultimately the officers were never able to complete the investigation because defendant's conduct necessitated the officers clearing the area of bystanders.
This Court finds therefore, beyond a reasonable doubt[,] the defendant obstructed the administration of justice and did so purposely.
In light of these findings, the conviction on trial de novo must be affirmed.
The Law Division reviews municipal court decisions de novo on the record giving due regard to the municipal judge's opportunity to view the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). On a subsequent appeal from the Law Division, we merely determine if there is sufficient credible evidence present in the record to uphold the findings of the Law Division. Johnson, supra, 42 N.J. at 162. In making our determination, we must defer to the trial court's credibility findings particularly because they were made by both lower courts. State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000).
N.J.S.A. 2C:29-1a provides that:
A person commits an offense if he purposefully obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.
"[R]efusing to obey the order of a policeman constitutes 'interference' within the meaning of N.J.S.A. 2C:29-1." State v. Doss, 254 N.J. Super. 122, 131 (App. Div.), certif. denied, 130 N.J. 17 (1992); see State v. Camillo, 382 N.J. Super. 113, 117-22 (App. Div. 2005) (requiring "a physical interference").
Defendant argues that he "committed no physical act which interfered with Bradley Beach Police Department activity and the failure to commit a physical act requires acquittal of obstruction." He further contends that the only physical act that he allegedly committed was that he "'violently pointed' his finger at Officer Browning," but "a finger is not a body part which normally can be used to cause physical harm and finger pointing is not a violent gesture . . . and his criticism of Officer Browning's threat to arrest him did not meet the requisite element of physical interference enumerated in N.J.S.A. 2C:29-1a." However, even though Judge Mellaci found that "defendant's verbal interruptions and refusal to leave the scene prevented the officers from conducting an investigation," he also found that "defendant was aware that his conduct was interfering with the officer's investigation, because he was told repeatedly to leave the scene and did not follow instruction." Moreover, independent of the physical act of finger pointing, Browning, Major and Volante testified that defendant refused to leave the scene after being instructed to do so, and there is sufficient evidence in the record to support the finding that defendant's physical presence after being directed to leave obstructed the investigation. The reasons for defendant's conduct are simply irrelevant, and to the extent defendant raises a constitutional defense, we simply note that the conviction was based on defendant's conduct, not upon his speech or criticism of the police.
N.J.S.A. 2C:29-2a provides that:
[A] person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest . . . . A citizen cannot evaluate for himself or herself whether an attempt to arrest is lawful. The statute expressly provides that "it is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance." N.J.S.A. 2C:29- 2a(1)(b); see State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997). The record supports the finding that, for whatever reason defendant had, there came a time that he resisted arrest. Judge Mellaci, based on the deference he had to give to the judge who observed the witnesses testify, found that the testimony of Browning and Major was "extremely credible." The judge gave reasons to support his findings, and we cannot disturb them.
Finally, defendant does not assert, essentially because of his claim of innocence, that the resisting constituted the obstruction or that there was no obstruction beyond his resisting arrest. Accordingly, we do not address the merger issue although we raised it at oral argument. See State v. Latimore, 197 N.J. Super. 197, 214 (App. Div. 1984), certif. denied, 101 N.J. 328 (1985) (raising a merger issue). However, because merger presents a question of sentence legality, our affirmance of both convictions does not preclude a petition for post-conviction or application to the trial court addressed to whether the two convictions should be merged into one. We affirm the obstruction and resisting arrest convictions.