On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. App. 03-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
Defendant appeals from his convictions for obstruction, in violation of N.J.S.A. 2C:29-1(a), and unsafe operation of a motor vehicle, in violation of N.J.S.A. 39:4-97.2.
The incident upon which defendant's convictions were based occurred at his home in Carneys Point Township around midnight on September 16, 2006. Two police officers were dispatched to a street near defendant's home in response to a 911 call reporting that two men were assaulting a woman. However, when the officers arrived at the scene of the reported assault, they did not observe anyone there.
As the officers were driving around the area, one of them observed three men walking along the street. He stopped the men and asked them whether they had observed anyone fighting. The men responded that they had seen a man pull a woman into defendant's house. The officers knew that defendant, who is also a Carneys Point police officer, resided in the house the three men had pointed out to them together with his girlfriend.
The officers knocked on the door of the house and identified themselves. The light on the front porch was then turned off, and defendant screamed at the officers, "Get the fuck out of here. There's nothing wrong." However, the officers said that they would not leave until they had an opportunity to speak to defendant's girlfriend, Rhoda Owens. Sometime thereafter, Owens emerged from the house carrying her baby. The officers spoke to and examined Owens, as a result of which they were satisfied that she was not injured or in any danger. As the officers were speaking to Owens, defendant came out of the house and yelled to her to stop talking to them and get back into the house. Defendant also yelled out obscenities to the officers and told them to get off his property.
Defendant then went back into the house and slammed the door. Shortly thereafter, defendant came back out of the house, got into his pick-up truck, noisily revved the motor, "peeled" the wheels, and sped away. The officers did not follow him. In finding defendant guilty of obstruction based on his de novo review of the municipal court record, the Law Division judge stated:
I don't get the sense, regardless of your cross-examination on that point, that their investigation was necessarily complete when the defendant told her to get back into the house, to not talk to them further, . . . I infer that from the -- all that was said and done at that time, that he did that in a manner of directing her by way of order, that it was a demand, or an order of a domestic partner, if you will, for that person to continue -- to discontinue their -- their cooperation with the police investigation.
It doesn't have to actually terminate the investigation for the defendant to be found guilty[.]
. . . I find that he did prevent them -- or attempt to prevent them from performing their official function, that is the investigation of this, by intimidation, and I find that he did it by intimidation, force, violence, physical interference, or obstacle. And, I find that he was attempting to place an obstacle in their path of the investigation, by ordering Ms. Owens to return to the house, and not to cooperate with them.
N.J.S.A. 2C:29-1(a) provides in pertinent part:
A person commits an offense if he purposely 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.
Initially, we note that the State argues, and that the Law Division ruled, that defendant violated N.J.S.A. 2C:29-1(a) by "intimidation" of Owens, thereby "prevent[ing]" the investigating officers from completing their investigation of defendant's possible act of domestic violence. The State does not argue that any of defendant's other actions, before he told Owens to go back into the house, constituted an obstruction of an official function within the intent of N.J.S.A. 2C:29-1(a). Although we agree with the premise of the State's argument -- that the intimidation of a witness during the course of a police investigation could constitute a violation of N.J.S.A. 2C:29-1(a) -- we conclude that defendant's conduct did not obstruct the police ...