June 30, 2009
STATE OF NEW JERSEY IN THE INTEREST OF G.H., JR., JUVENILE-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-354-08A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2009
Before Judges Lisa and Sapp-Peterson.
After a hearing, G.H., Jr., a fourteen-year-old juvenile, was adjudicated delinquent of offenses which, if committed by an adult, were as follows: (1) disorderly persons simple assault against Kenny Owens, N.J.S.A. 2C:12-1a(1); (2) disorderly persons simple assault against Henry Greenmier, N.J.S.A. 2C:12-1a(1); (3) disorderly persons obstructing the administration of law by means of flight, N.J.S.A. 2C:29-1a; and (4) third-degree resisting arrest through use or threatened use of physical force or violence, N.J.S.A. 2C:29-2a(3).*fn1 The judge merged the third charge with the fourth charge, and then imposed a disposition on all charges of probation for one year.
The sole issue raised by G.H. on appeal is that the judge's findings were not supported by sufficient credible evidence in the record.*fn2 More particularly, G.H. argues that he was not identified as the perpetrator of the two assaults, he had a constitutional right to flee from an illegal police investigatory stop, and he did not resist arrest as alleged in the fourth charge. We reject these arguments and affirm.
These are the facts found by Judge McGann. On May 12, 2007, at about 8:55 p.m., G.H. was in the company of a group of young people on the boardwalk in Keansburg. For reasons not revealed by the record, the boardwalk manager, Kenny Owens, asked G.H. and several other young men to leave the boardwalk.
Standing nearby were ten to twenty other young people. G.H. and his friends refused to leave and began shouting and cursing at Owens. Greenmier worked at a boardwalk stand and knew Owens. He was not working that evening but was on the boardwalk and saw what was happening. Lonnie Squires was working at a boardwalk stand. He also knew Owens and also witnessed the events. Greenmier and Squires walked over to assist Owens, and the men escorted some of the unruly youths, including G.H., off the boardwalk and onto the street. The larger group followed.
G.H. was the most boisterous of the group. He continued to protest being asked to leave the boardwalk and continued to loudly voice his objections. Greenmier placed his hand on G.H.'s shoulder and said, "calm down, son." G.H. turned toward Greenmier and swung at his face with a closed fist, grazing Greenmier's lip. G.H. then punched Greenmier twice in the chest.
By this time, the police had arrived. Two of the officers, Guillermo Rivera and Joseph Kane, observed G.H. bouncing around and assuming a fighting position in front of Owens. They saw G.H. throw a punch at Owens.*fn3 G.H. then turned and began to run.
He saw the police, who ordered him to stop. Rivera attempted to grab him and to spray him with OC spray. Kane gave chase, and, without ever losing sight of G.H., eventually caught him. G.H. then turned toward Kane, assumed a fighting stance toward him, which prompted Kane to spray G.H. with pepper spray, after which he physically brought G.H. down to the ground. Two other officers, Tiffanie Dill and John O'Connor, arrived at that location. They observed G.H. continuing to resist Kane by kicking his legs and flailing his arms. They, as well as Kane, repeatedly told G.H. to stop resisting, but he did not, until he was finally subdued and removed from the scene.
At trial, the State presented the testimony of Squires, Greenmier, Rivera, Kane, Dill and O'Conner. G.H. testified in his own behalf and also called one of the juveniles who was present at the scene. They gave a more benign description of the events. They contended the three men at the boardwalk used racial epithets toward them, and that the police maced, chased, and subdued G.H., using excessive force, for no apparent reason. G.H. denied swinging at Greenmier or Owens, or assuming a fighting stance toward Kane.
In a thorough oral decision, Judge McGann reviewed the testimony of each witness and made credibility determinations. He found the State's witnesses credible. He found the testimony of G.H. and his friend incredible. He found the evidence sufficient to establish beyond a reasonable doubt that G.H. was indeed the individual who punched Greenmier and swung at Owens. He found that G.H. ran away from the scene despite the presence of several uniformed police officers commanding him to stop. Finally, he found that G.H. resisted arrest, and in doing so used physical force against Kane and also threatened to use physical force or violence when he assumed a fighter's stance toward him.
G.H. contends that because none of the State's witnesses except Dill were able to identify him in court, the proofs were deficient on the issue of identification. We disagree. The various witnesses described the perpetrator's physical appearance and what he was wearing. That, together with the course and sequence of the events leading up to Kane's uninterrupted chase and capture of G.H., provided ample evidence to support the judge's finding that G.H. was the member of the group who assaulted Owens and Greenmier.
We reject out of hand G.H.'s argument that he had a constitutional right to run away from the police because he was fleeing an illegal police investigative stop. First, there was nothing improper about the investigative stop being conducted. The stop resulted from a dispatch call summoning police to respond to a fight at this location, and, upon their arrival, police officers observed a large group of people and witnessed G.H.'s unruly and assaultive behavior. Further, even if the stop was not proper, an individual is obligated to obey the command to stop issued in good faith by a police officer. State v. Williams, 192 N.J. 1, 10-13 (2007); State v. Crawley, 187 N.J. 440, 451-52, 460, cert. denied, 549 U.S. 1078, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006).
Finally, based upon the evidence credited by the trial judge, all elements of third-degree resisting arrest by using or threatening to use physical force or violence were satisfied beyond a reasonable doubt.
Judge McGann's factual findings were amply supported by sufficient credible evidence in the record, State v. Johnson, 42 N.J. 146, 162 (1964), and we have no occasion to interfere with those findings on appeal. The judge correctly applied the controlling legal principles in adjudicating G.H. delinquent on all four charges.