On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Docket No. A-65-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Defendant John McLeod, III, was found guilty in the municipal court of four disorderly persons offenses: simple assault, N.J.S.A. 2C:12-1(a)(1); resisting arrest, N.J.S.A. 2C:29-2; disorderly conduct, N.J.S.A. 2C:33-2(a); and criminal mischief, N.J.S.A. 2C:17-3(b)(2). For purposes of sentencing, the assault conviction was merged with the resisting arrest conviction and the disorderly conduct conviction was merged with the criminal mischief conviction, for which jail terms of 120 days were imposed. Appropriate fees and penalties were also imposed and restitution fixed. On appeal, the Law Division, after a trial de novo, upheld the convictions and sentence. Defendant appeals, and we affirm.
According to the State's proofs, on June 8, 2006, at about 5:30 p.m., Franklin Township uniformed police officers Jeffrey McGuigan and Christopher Senor were dispatched to a residence on Hall Avenue on a complaint of a domestic dispute between defendant and his brother Shawn. Shortly after their arrival, they were met by another township police officer, Vincent DiPietro, who was off-duty, but nevertheless responded to the scene because he lived nearby.
When the police arrived, defendant, Shawn and their parents were standing in the driveway of the main residence on the ten-acre property, which was owned by defendant's parents and housed another dwelling in which defendant apparently lived. All four individuals were "yelling . . . back and forth." The officers then separated the family members, McGuigan taking defendant behind the patrol car while Senor remained with the others. Soon afterwards, defendant's mother approached McGuigan and informed him there was a "final restraining order [FRO] out against [defendant] and his father." The officer interpreted that to mean defendant was not allowed on the property. In any event, McGuigan contacted County Dispatch to confirm with the Domestic Violence Registry that a FRO was indeed in effect.*fn1
Upon receiving verification, defendant was placed under arrest.
McGuigan handcuffed defendant without assistance, although Senor observed that defendant was "very, very uncooperative and boisterous and kind of refused to be handcuffed . . . quietly." Once handcuffed, however, and told to sit in the rear of the patrol car, defendant continued "yelling and screaming, twisting his body and getting tensed up so that he could not be placed in the rear . . . seat . . ." Defendant would not enter the patrol car of his own volition, so Officer DiPietro had to assist McGuigan in physically placing him in the vehicle. Officer Senor also observed defendant "tensing up . . . pulling away" as the other officers attempted to place him in the patrol car, all the while being "boisterous" and insisting it was unfair and that there was no reason for his arrest.
Once inside the vehicle, defendant began screaming. He laid on his back with his head by the passenger's side and, with boots on, kicked the rear driver's side window with his feet, breaking it on his second attempt. The glass shattered and struck Officer Senor, who was standing only one or two feet away, in the face and arm, causing four or five cuts to his hand.
Obviously crediting the State's proofs, the municipal court judge found defendant guilty of all four disorderly persons offenses charged. After his de novo review, the Law Division judge, acknowledging the municipal court's opportunity to assess the credibility of the witnesses, and determining, independently, the State's proofs to be credible, upheld defendant's convictions. With particular respect to the resisting arrest offense, the Law Division judge found:
Officer DiPietro testified they tried to place the defendant in the vehicle, he became rigid, would not allow them to place him in the vehicle. Then they explained how physically they had to position the defendant and sort of bend him up to get him into the vehicle. Somehow, the defense wants the Court to believe that that's not resisting arrest, and what I take it from the defense's argument is that once the cuffs were placed on the defendant that he had no ability to resist arrest. And, quite frankly, I don't buy that argument. I think the defendant has a continuing responsibility to obey orders and do what's appropriate, and the ability to resist arrest did not stop upon being placed -- the handcuffs placed on the defendant.
There was testimony regarding the fact that defendant [was] trying to convince the officers that there was not an FRO in effect, and maybe there wasn't. I find that to not be probative of this issue at this time. After being placed in the patrol car, for whatever reason, the defendant continued his conduct, such to the point that he kicked out the back window of a police car, and the glass, by testimony, struck an officer and there was a slight injury.
I do not find that the defendant intentionally harmed the officer, although that was the result and he's responsible for that. I do find that, however, he was intentionally kicking the window, trying to kick it out, and that act in itself was a continued resisting of arrest. Again, ...