August 3, 2009
STATE OF NEW JERSEY IN THE INTEREST OF G.G., JUVENILE-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-0237-08B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 9, 2009
Before Judges Lisa and Collester.
After a hearing, G.G., a juvenile, was adjudicated delinquent of offenses which, if committed by an adult, would constitute third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) and fourth-degree criminal trespass, N.J.S.A. 2C:18-3a. G.G. was sentenced to one-year probation. G.G. argues on appeal:
I. THE JUVENILE'S ADJUDICATION OF DELINQUENCY FOR CRIMINAL TRESPASS, CONTRARY TO N.J.S.A. 2C:18-3, MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO RECOGNIZE A HEIGHTENED BURDEN OF PROOF FOR PUBLIC PLACES.
II. TRIAL COUNSEL'S FAILURE TO RAISE AN AFFIRMATIVE DEFENSE TO THE CHARGE OF CRIMINAL TRESPASS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. THE STATE'S EVIDENCE ON THE CHARGE OF THIRD-DEGREE RESISTING ARREST WAS INSUFFICIENT TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT.
IV. THE TRIAL COURT ERRED BY ALLOWING THE STATE'S WITNESS, MARK ALFONE, TO REFRESH HIS RECOLLECTION WITH A POLICE REPORT.
These arguments lack sufficient merit to warrant extended discussion in a written opinion, R. 2:11-3(e)(2), and we affirm. We nevertheless set forth a summary of the facts and comment briefly on the appeal arguments.
On May 16, 2007, G.G., then fifteen years old, was a student at Neptune High School. Shortly after 2:00 p.m., G.G. was on the grounds of the Neptune Middle School, just after the students of that school had been discharged for the day. He was talking to some middle school students. The middle school principal, Mark Alfone, regularly patrolled the grounds after students were discharged to assure good order and safety for the students. Alfone noted that G.G. was not a student at the middle school. He approached G.G. and asked who he was and what he was doing there. G.G. responded by refusing to identify himself and telling Alfone to "get out of his fucking face," and that "he wasn't going to talk." As the conversation continued, G.G. continued to conduct himself in a belligerent manner and refused to leave the grounds. G.G. never made any comment as to his purpose for being on the grounds, where he was going, or what he was doing.
Using his walkie-talkie, Alfone contacted the school office and requested that the police be called. He informed G.G. that the police were on their way, but G.G. continued to refuse to leave the grounds. Two police officers arrived several minutes later. Seeing the police, G.G. walked up to Alfone, "face to face, toe to toe, and then stopped and told [him] to get out of his way." As the officers approached G.G., he spit in the direction of one of them and began to walk away. One of the officers attempted to speak to G.G., and G.G. replied, "get the fuck away from [me]." The officers advised G.G. he was under arrest for disorderly conduct, and one of the officers placed his hand on G.G.'s shoulder. G.G. pushed the officer's hand away and a physical confrontation ensued. G.G. began kicking and hitting the officers. As they continued in their attempt to subdue him, an officer told G.G. if he did not stop resisting they would use pepper spray. He continued resisting. Pepper spray was used. G.G. was then handcuffed and removed from the scene.
The facts we have described are substantially consistent with the testimony of both officers and Alfone. The judge credited the testimony of those three witnesses, and explained the reasons why he found their testimony credible.
G.G. testified. He said it was his daily routine to pick up the little brother of a friend of his at the nearby Gables School, and he was on his way there when he stopped off to talk to some friends at the middle school. He said Alfone approached him, and began asking him his name, where he was from and what he was doing at the school, and then told him he had to leave. He acknowledged that he did not leave. He said police officers then came. He described the encounter with them this way:
The police came and one -- both of them came out [of] the car and one grabbed me by my wrists and I leaned back and another one hopped on my back, and then that's when I started to stumble, and the other one came on me and I was on the grass.
And then one sprayed me and said how do you like that; you're not a tough guy --tough guy now and he sprayed me again.
And then after that they had a knee in my face and put the handcuffs on me. And then that was it. They put me in the car.
G.G. denied resisting the police in any way and denied that they told him he was being placed under arrest.
The judge found G.G.'s testimony incredible. He noted it would have been logical for G.G. to inform Alfone or the police of his asserted benign purpose for being on the property, namely passing through to pick up a younger child at the Gables School as he did every day. The judge also noted that G.G. acknowledged that he was told he was not permitted to be on the middle school grounds and that he refused to leave.
A person is guilty of criminal trespass who, "knowing that he is not licensed or privileged to do so,... enters or surreptitiously remains" on any property, and the offense is a crime of the fourth degree if "it is committed in a school or on school property." N.J.S.A. 2C:18-3a. G.G. was well aware, having been informed by Alfone, who identified himself to G.G. as the principal of the middle school, that G.G. was not permitted to be on the school property. Yet, G.G. refused to leave.
The record established that it was a policy in the school district that high school students were not permitted on the middle school grounds. Alfone testified that public address announcements were regularly made in the high school informing students of the policy. G.G. denied knowledge of those announcements, stating that, although he heard the announcement, he did not pay attention to them. The judge did not rely on those announcements as a basis for G.G.'s knowledge that he was not permitted on the grounds. Nevertheless, that testimony established an existing and ongoing policy, which Alfone was merely enforcing, as it was his duty to do.
G.G.'s argument that a heightened burden of proof was required because this was public property lacks merit. His reliance on State v. Besson, 110 N.J. Super. 528 (App. Div. 1970), is misplaced. Unlike the defendant in that case, G.G. was not attempting to exercise any right of free speech or assembly. The circumstances of this case did not implicate any First Amendment rights.
Likewise, G.G.'s counsel was not ineffective for failing to raise the affirmative defense that he could not be found guilty of trespassing because the school grounds were "open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining" there. See N.J.S.A. 2C:18-3d(2). Under the Strickland/Fritz*fn1 test, ineffective assistance requires a showing that counsel was deficient and that, but for the deficient conduct, the result of the proceeding would likely have been different. Neither prong is satisfied here. This defense was plainly not applicable under the circumstances of this case. As we have stated, prohibition of high school students from entering the middle school grounds was an established policy in the school district, and G.G. was informed of his violation of that policy. The school grounds, at least at the time school is in session or immediately before commencement of classes and immediately after dismissal, were not open to members of the public. Individuals such as G.G. were not permitted to be there in those circumstances.
G.G.'s argument that the evidence was not sufficient to enable the judge to find him guilty of third-degree resisting arrest is unpersuasive. The judge's factual findings, including his credibility determinations, are well supported by the record, and we have no occasion to interfere with them. State v. Johnson, 42 N.J. 146, 162 (1964). Resisting arrest is a third-degree offense if, in attempting to prevent a police officer from effecting an arrest and individual "uses or threatens to use physical force or violence." N.J.S.A. 2C:29-2a(3)(a). The judge's findings that the officers informed G.G. he was being placed under arrest, that G.G. resisted, and that in doing so he used force against the officers, are well supported by the record.
G.G.'s final argument, that the judge erred by allowing Alfone to refresh his recollection by looking at a police report, has no merit. Alfone was permitted to look at a police report to refresh his recollection as to the specific date of the incident, which he did not recall. The judge did not mistakenly exercise his discretion in allowing this procedure. Further, the date was not a material fact in dispute, and Alfone's recollection of it had no bearing on G.G.'s guilt or innocence.