On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 26-2006.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Grall.
Defendant Steven Stull appeals from a final judgment of conviction entered after a trial de novo on defendant's appeal from his conviction for simple assault, N.J.S.A. 2C:12-1a(1). He does not challenge the fines imposed or the order compelling forfeiture of his position as police officer with the Hamilton Township Police Department and barring him from holding a public office or position in the future, N.J.S.A. 2C:51-2a(2); N.J.S.A. 2C:51-2d.
Defendant contends that the State did not prove an essential element of simple assault, bodily injury. On the basis of sufficient credible evidence in the record as a whole, the judge reasonably concluded that defendant caused "physical pain" that is adequate to establish "bodily injury," N.J.S.A. 2C:11-1a. State v. Johnson, 42 N.J. 146, 162 (1964). That determination is not "clearly... mistaken... and so plainly unwarranted" as to warrant our intervention in "the interests of justice." Ibid. Accordingly, we affirm.
On January 11, 2006, defendant was a spectator at a basketball game played in the gymnasium of a middle school in Hamilton Township. His wife, daughter and father were also at the game. After the game was over, defendant's daughter, who had not been sitting with her parents, returned and told her mother and father that another child had been bothering her. She pointed out that child's mother, Mrs. Williams, who was sitting in the bleachers on the opposite side of the basketball court. Defendant's wife left the bleachers, crossed the floor and went to speak to Mrs. Williams. Rebecca Lang, who was sitting within ten feet of the women, described them as yelling at one another. As their conversation became heated, defendant went to get his wife. Defendant spoke to Mrs. Williams, separated his wife and Mrs. Williams and escorted his wife down the bleachers. Defendant acknowledged telling his wife that Mrs. Williams was ignorant. Mrs. Williams and her son heard that remark and an offensive name defendant and his wife used to describe Mrs. Williams. As Mrs. Williams's son described defendant's conduct, defendant was "talking trash" while he and his wife were leaving the bleachers.
Mrs. Williams and her son were also ready to leave the gym, and they too walked down the bleachers. When she reached the gym floor, Mrs. Williams approached defendant and his wife to continue their discussion.
Defendant either pushed Mrs. Williams away or placed his arm between her and his wife. At that point, Mrs. Williams's son attempted to intervene and defendant placed him in a headlock.
There were sharply conflicting descriptions of the event that precipitated defendant's action. According to defendant and his father, the boy came at defendant from behind and punched him in the back of the head. The municipal court judge who heard the testimony did not believe defendant or his father. No witness other than defendant and his father saw the boy hit defendant.
By the boy's account, he attempted to separate his mother and defendant. Susan Fiorello, who also was standing on the gym floor, heard defendant tell the boy he needed to have more respect as he placed him in a headlock.
Lang saw defendant after he had the boy in a headlock. She described the boy as bent at the waist with his head down, near the bottom of the bleachers. According to Fiorello, defendant walked back and forth with the child in a chokehold in a fifteen-to twenty-foot area of the gym. As the boy described it, defendant's arm was "around [his] neck, squeezing it and yanking [him] all over the place." The boy said he was "off balance kind of because he was swinging me all over the place."
The witnesses' estimates of the period of time defendant held the child in a headlock varied. The lowest estimate was fifteen seconds ...