On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2007-025.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 30, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Michael J. Dorkhom appeals from that portion of a Law Division judgment that affirmed de novo his conviction in municipal court of disorderly conduct in violation of N.J.S.A. 2C:33-2a(2). He asserts on appeal that his actions do not constitute a violation of that statute. We affirm.
During the early morning hours of July 30, 2006, the Cedar Grove Police Department received a 911 call from defendant reporting that he was being detained at gunpoint and that officers should approach the home from the back door. Police Officer Carolyn Schoenich, Lieutenant Dale Carriker, and three other Cedar Grove police officers responded to 8 Westfield Court and found multiple vehicles in front of the house and many people on the lawn. They called for Mutual Aid police backup and held the people on the front lawn at gunpoint. Schoenich and Carriker met at the back of the house and saw a lot of people in the house as well, but could not tell what was happening. They returned to the front of the house and stood by the front door to await assistance from the Verona, Little Falls, and Montclair police departments.
Before help arrived, they saw someone in the house coming to the front door, so Schoenich and Carriker opened the door with guns drawn and ordered everyone to the ground. When the other officers arrived, they secured the scene and began to frisk everyone, but found no guns on anyone. Schoenich then asked who had called 911 and, after she asked several times, defendant replied that he had done so.
Schoenich separated defendant from the others and they spoke outside. Defendant said that he went to the home of his friend, Paul Sayegh, who resided at 8 Westfield Court. His friend accused him of making threatening phone calls to Sayegh's phone, using a disguised voice. They started to argue and defendant wanted to leave, but Sayegh threw him to ground and put a gun to the back of his neck and would not let him leave. Defendant hit his head when he was thrown to the floor. That was when he called 911. Defendant said that he broke away and ran upstairs to talk to Sayegh's mother.
Defendant at the time had glassy, droopy eyes and he was swaying as he talked to Schoenich; half the time he did not look at her. He also changed his story several times, denying that it happened and then saying it did. When asked to make a formal statement, he refused, saying that it did not happen. He did not want to do anything because he had known Sayegh for years. His speech was very slow, slurred, and he fumbled for words. The police investigation revealed that Sayegh did have a gun in the house. After speaking with Sayegh and then the department's legal advisor, Schoenich and Carriker placed defendant under arrest for being under the influence of a controlled dangerous substance (CDS), creating a false police report, using 911 without needing its services, and causing a public alarm by stating that there was a crime in progress.
After the officers testified, the judge listened to the 911 tape in which defendant admits that he stated, "Someone with a gun won't let me leave the house." The State then rested, at which point defendant offered into evidence a videotaped statement Sayegh gave to the police three days after defendant's arrest.*fn1 The judge did not accept this videotaped statement as testimonial evidence because Sayegh could and should have been subpoenaed to testify, although he considered it as "corroboration" of the testimony given by the police officers.
Two complaints were issued. Complaint No. W-2006-0121 charged defendant with one count of third-degree making a false report of a crime via the 911 system to the Cedar Grove Police Department, in violation of N.J.S.A. 2C:33-3a; and one count of fourth-degree knowingly placing a call to the 911 emergency telephone system without purpose of reporting the need for 911 service, in violation of N.J.S.A. 2C:33-3e. The Essex County Prosecutor administratively downgraded both counts of this complaint to violations of N.J.S.A. 2C:33-2a(2). Complaint No. S-2006-0122 charged defendant with being under the influence of CDS, in violation of N.J.S.A. 2C:35-10b.
The municipal court judge concluded that the State had not proven the CDS charge beyond a reasonable doubt and dismissed it. The judge then found the facts relating to the other complaint. With respect to the first count charging a violation of N.J.S.A. 2C:33-2a(2), the judge found that defendant reported a crime in progress knowing that the report was false because there was no evidence that the gun Sayegh was licensed to possess was ever pointed at defendant.*fn2 He also found that this false report created great risk of harm and a hazardous condition because the officers who responded drew their guns and held people at gunpoint.
With respect to the second count, which had originally charged a violation of N.J.S.A. 2C:33-3e, the judge found that defendant knowingly made a call to the 911 service without purpose or need to make the call, and found defendant guilty on the second count of the complaint. The judge then merged the second count with the first count for sentencing purposes and sentenced defendant to thirty days in jail, which he suspended, and ordered restitution. He also imposed various fines and assessments. At a restitution hearing on March 6, 2007, the judge concluded that no restitution was due. The sentence was stayed pending appeal.
On de novo review before the Law Division, the judge considered the evidence at the municipal court trial. The judge overturned the conviction on the second count for a violation of N.J.S.A. 2C:33-3e. She reasoned that defendant was on medication and that there was a reason for the 911 call, albeit not a reason with which the State and the court would agree, but a reason nonetheless. However, she sustained the conviction on the first count for violation of N.J.S.A. 2C:33-2a(2) because defendant did cause a public inconvenience. Defendant reminded the judge that both counts were downgraded to petty disorderly persons offenses under N.J.S.A. 2C:33-2a(2), and argued there was clearly only one action and, thus, defendant could ...