On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and R. B. Coleman.
This is an appeal from a trial de novo concluding that defendant Maria Accardi-Adams unlawfully (1) used a cell phone while driving, N.J.S.A. 39:4-97.3(a); (2) knowingly drove a vehicle on a closed road, N.J.S.A. 39:4-94.2b; (3) resisted arrest, N.J.S.A. 2C:29-2a; (4) created a public inconvenience, N.J.S.A. 2C:33-2; and (5) failed to produce a license, registration and insurance card, N.J.S.A. 39:3-2.*fn1 Except as modified as to the sentence, we affirm.
While the resolution of the underlying offenses is relatively simple and straightforward, the unusual circumstances created by defendant's conduct when confronted with the simple request to produce her driving credentials generated a factual scenario that requires a full exposition of the credible facts as determined by both the Municipal and Law Division judges.
On Thursday December 9, 2004, Morris Avenue in the Borough of Mountain Lakes was closed from Lake Drive to Rockaway Terrace. Notice of the road closure had been forwarded to the affected residents on at least two occasions and appropriate signage and police presence were readily apparent. In fact, Mountain Lakes advised its residents that Morris Avenue would be under construction "for this fall and most of 2005."
The relevant portion of Morris Avenue was closed at each end with trenches dug along the roadway together with various generators, machinery and hoses present in the road and workers moving back and forth. Starting at approximately 7:45 a.m., police and contractors placed cones across both ends of the road with eight-foot tall orange signs marking "Road Closed" and police vehicles with lights "rolling" parked at each end. Residents of Morris Avenue were permitted to proceed to their homes simply by stopping at the barriers and identifying themselves to the police officers. Sergeant James Nieusma and Officer Sam Trimble of the Mountain Lakes Police Department were on duty that day maintaining the road closure at the construction site. Sergeant Nieusma was in a marked police car with overhead lights flashing.
While the road work was in progress, defendant drove her automobile past the officer and cones onto Morris Avenue heading north while talking on her cell phone and without stopping. Defendant "zigzagg[ed] back and forth to both sides of the road dodging workers and equipment." Defendant also ran over the hoses and ditches at a rate in excess of the posted 25 mile an hour speed limit and nearly hit a worker in the roadway before pulling into her driveway.
Sergeant Nieusma then followed defendant in his police vehicle, with lights flashing and pulled in behind her in the driveway. Defendant, still on her cell phone, rolled the window down, and Sergeant Nieusma informed defendant that she "just drove into a construction zone." Defendant then slammed her phone shut, and Sergeant Nieusma asked for her license and registration. Sergeant Nieusma again stated "you just drove into a work zone" and defendant responded by saying "don't you know who I am, I'm a resident here, you can't talk to me that way." Defendant became uncooperative and told the officer, "don't you know who I am, I don't have to do that, I live here." For fifteen minutes, Sergeant Nieusma continued to ask defendant for her license and registration. During that time, defendant made several phone calls (including one to the State Police) and threatened to call Sergeant Nieusma's superior. Officer Trimble then approached. Sergeant Nieusma explained that he was performing a traffic stop because defendant drove through the construction zone, and she was not producing her license. Officer Trimble then asked defendant to produce her license, and defendant began yelling (out loud and to the person on the phone), "now you're ganging up on me, I'm scared, I'm afraid."
As found by the trier-of-fact, at no point did Sergeant Nieusma yell or use profanity towards defendant. However Officer Trimble took a different approach and said "hey, dude, listen, we don't have our summons books on us, you -- you're not even getting a ticket, give us your license and registration, and this whole thing's over." Defendant then responded, "dude, you can't call me dude, I'm a resident." Officer Trimble then commented: "I don't give a shit where you live, I'm not the postman, I'm not your garbage man, license and registration."
Sergeant Nieusma did not have his summons book at the time, and as a result of defendant's lack of cooperation, he called headquarters to have a traffic ticket book brought to him. After Officer Gilberto Benitez arrived on the scene, he, too, observed defendant's lack of cooperation, describing "a lot of yelling" and that defendant was "very irate and -- and just flailing her arms inside the vehicle." After more than fifteen minutes of requesting defendant to produce her driving credentials, Sergeant Nieusma warned defendant that "if she didn't produce her driver's license and registration, she was going to be arrested for disorderly conduct." Sergeant Nieusma gave defendant a "couple of more minutes," yet defendant still refused to produce her credentials. Finally, Sergeant Nieusma placed defendant under arrest.
Sergeant Nieusma took hold of defendant's wrist and attempted to pull her from the car, however "[s]he grabbed hold of the steering wheel, jammed her feet up under the petals [sic] and threw her hips on top of the gear shift so that she was wedged behind the gear shift and the steering wheel." Sergeant Nieusma pulled defendant from the car by her arm, and before he could handcuff her, she attempted to slap the Sergeant over her back. Defendant alleged that during the arrest the officers twisted and injured her arm.
After arresting and retrieving defendant's license and registration from her pocketbook, Sergeant Nieusma and Officer Trimble had no further contact with defendant as they released defendant to Officer Benitez. Officer Benitez then escorted defendant to his police vehicle and took her to headquarters. Defendant was then fingerprinted, photographed, processed and handcuffed to a bench at police headquarters. Defendant claims she was handcuffed to the bench for an hour, however, Officer Peter Piombino, who processed defendant, stated that she was there for no more than 20 minutes and did not complain about her physical condition. Ultimately, defendant was charged and released.*fn2
As the earlier events were taking place on Morris Avenue, an independent witness, Todd Drugac, the foreman of the construction crew working at that section of Morris Avenue abutting defendant's residence, observed defendant driving on Morris Avenue. Drugac had placed the signs in the road on the morning in question. He and his crew had been working on this particular area of the roadway for two or three days prior to the incident and other than defendant, no other residents had gone through the construction zone. He observed defendant traveling on the roadway followed by a police vehicle with lights and siren operating. While he did not observe much of the interplay between the police officers and defendant, he did observe defendant drive down the roadway, through extensive construction including hosing and ditches and almost strike a construction worker.
Defendant's testimony contrasts markedly with that of the State's witnesses. Defendant stated she left her home at 8:15 a.m. to drive her children to school and returned at 8:25 a.m. and did not see construction on either leg of the trip. Defendant left her home again to go to the YMCA at 9:00 a.m., and again she saw no construction in the roadway on her way out. When she returned from the YMCA, she drove on Morris Avenue toward her home and saw a police car parked in the road "perpendicularly." Defendant asserts she did not see any police officers, workers, cones, sirens, lights or detour signs when she saw the police car. Upon seeing the police car, defendant decided to proceed on another street, which runs parallel to Morris Avenue, in order to enter Morris Avenue from the other end. After driving down the other end of Morris Avenue for about 150 yards, defendant said she saw a small orange cone in the middle of the road. Upon seeing the cone, defendant saw "something going on on the right-hand side" of the road ahead. Defendant then drove in the left lane of Morris Avenue to travel home.
Defendant stated that when she pulled into her driveway she was "suddenly alarmed" by Officer Nieusma "banging on [her] window yelling at [her] about bypassing the cones and construction." Defendant concedes that she was on the phone at this time but claims that she was using a headset and immediately hung up when the officer encountered her. Defendant asserts that Sergeant Nieusma spoke "very sternly" and "loudly" and that she was confused because she did not realize she was not allowed to drive on the road. Officer Trimble then approached, and defendant claimed that he was "completely out of control," "pacing back and forth screaming" that defendant thought she was better than him because she is "an F'ing Mountain Lakes resident" and that "all you F'ing Mountain Lakes residents are the same." Defendant said that Officer Nieusma then asked her to get out of the car, but she refused because she was "afraid." Defendant then made two calls on her cell phone including one to 9-1-1.
Defendant claimed that Sergeant Nieusma then opened the door, pulled her out, slammed her against the car and handcuffed her. Defendant said she told the officers that they were hurting her, but Officer Trimble laughed and called her a "lunatic." Officer Benitez then took her to the police station and defendant believes Sergeant ...