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State v. Hertz

November 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 01-103.

Per curiam.


Argued September 14, 2009

Before Judges Rodríguez, Reisner and Yannotti.

Defendant Barbara Hertz was convicted in the Municipal Court of Boonton Township and again after a trial de novo in the Law Division of the disorderly persons offense of obstruction of justice, N.J.S.A. 2C:29-1a, and the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-2a(2). She appealed the conviction. We reversed and remanded, State v. Hertz, No. A-081-99 (App. Div. Jan. 25, 2001), finding that the Law Division judge applied the incorrect standard of review and defendant was wrongfully denied a full opportunity to present evidence of "witness' interest, bias and credibility."

On remand, the Law Division judge afforded defendant wide latitude in supplementing the record. Indeed, defendant essentially received a new hearing on both factual and credibility issues. After considering the extensive remand testimony, the judge found defendant guilty of both obstruction of justice and disorderly conduct. We now affirm in part and reverse in part.

The evidence at the trial in the municipal court was detailed in our original opinion. This is an overview. The facts were sharply disputed. The State's version was that on May 18, 1998, at 12:43 p.m., Sergeant Andrascik of the Lincoln Park Police Department responded to a house alarm at Orchard Drive in Lincoln Park. Officers McGregor and Herbeck were already there. McGregor and Herbeck parked their patrol car "not quite on the side of the road." Andrascik pulled up his vehicle alongside the other one. Although the two patrol cars were parked next to each other, the road was still wide enough to allow other cars to pass.

Andrascik walked towards the house. When he was approximately twelve feet from the driveway of the house, he noticed Hertz walking up Orchard Drive. She was about twenty to twenty-five yards from him. Andrascik recognized Hertz based on a previous encounter. As she rushed towards the officers, Hertz was holding a bag in one hand and reaching inside it with her other hand. Andrascik and McGregor told Hertz not to approach. Hertz ignored their warnings and continued to advance towards the police officers. Andrascik repeated his warning to stop. Hertz responded, "[a]nd if I don't, are you going to arrest me?" Andrascik replied that he would arrest her if necessary.

Hertz retrieved a camera from her bag. She raised it into the air as she charged towards the officers. The camera was not held in a position to take photographs. The camera came within a few inches of the bridge of Andrascik's nose. He managed to avoid contact by grabbing Hertz's arm. Andrascik arrested Hertz and confiscated the camera.

Hertz disagrees with the State's proofs. She is the owner of real property on Orchard Drive, an empty lot used for agricultural purposes. Orchard Drive is the only road that can be used to access her property. There is a history of prior dealings and confrontations with the Lincoln Park police force. Hertz has also been engaged in various types of litigation with her neighbors regarding property issues. One of these lawsuits was against her neighbor Michael Nowacki, the former police chief of Lincoln Park. Hertz alleges that she has often been harassed by the Lincoln Park police.

According to Hertz, on the morning of May 18, 1998, she was working on her property. After completing her work, she was walking up Orchard Drive to her car. She noticed the two patrol vehicles parked alongside of each other. The patrol vehicles were completely obstructing the road so that no other car or pedestrian could pass. As soon as Hertz noticed the vehicles, she retrieved her camera and began taking photographs.

Hertz saw Andrascik drive off in his car and later return on foot. While Andrascik was not present, McGregor got out of his car and approached Hertz holding his hands up in front of his face. Hertz testified that she was attempting to photograph the vehicle's license plate and not the officers.

McGregor approached her and said, "[y]ou never learn do you Mrs. Hertz." He then asked her why she was taking photographs. Hertz testified that the officers did not inform her to stop or that they were investigating an alarm.

At trial, Hertz was represented by counsel. Andrascik was the sole witness for the State. Hertz had subpoenaed the following witnesses to testify at the municipal court trial: Michael Nowacki; Tony Postiglione, the owner of the house whose burglar alarm sounded; Jennifer Willis, Postiglione's girlfriend; Lincoln Park Police Chief Kenneth West; and Clara Perry, another one of Hertz's neighbors. Only Nowacki appeared.

Nowacki admitted that he had filed complaints against Hertz in the past. On May 18, 1998, however, Nowacki and his wife were not in town. Nowacki testified that he never suggested to Andrascik to lodge any complaints against Hertz nor was he aware that any complaints had ever been filed.

The judge found Sergeant Andrascik to be credible. He found Hertz guilty of obstruction of justice and disorderly conduct and not guilty of harassment.

This is a summary of the evidence presented at the remand hearing. Anthony Postiglione appeared as a defense witness and testified that, although his burglar alarm had gone off several times in the past, he could not recall any details about the May 18, 1998 incident. On direct examination, Hertz asked several questions relating to a street map of the area around Orchard Drive and photographs taken from her camera. She attempted to make the point that the orientation of the streets and objects in the photograph revealed that they were not taken by Hertz, but must have been taken subsequently.

Officer James Herbeck testified as a defense witness. His recollection of the events of May 18, 1998 was substantially similar to Andrascik's prior testimony. Herbeck arrived at the scene of the burglar alarm with McGregor. The two officers did not enter onto the property because of the presence of a dog. Shortly after Andrascik responded to Orchard Drive, Herbeck recalled that he observed defendant walking up the road toward the officers. Defendant ignored McGregor's instruction to keep away from the officers. Herbeck agreed that the reason for defendant's arrest was that she was "distracting" the officers from their investigation. After defendant's arrest, McGregor stayed behind at the scene while defendant was transported to the police station. Herbeck testified that he remained in McGregor's patrol car at all times until after Hertz was arrested.

Hertz questioned Herbeck at length regarding the contents of various photographs supposedly taken by Hertz just prior to her arrest. Herbeck denied taking any of the pictures himself or otherwise handling Hertz's camera. He disagreed that Hertz's camera and film were "destroyed" and that he participated in "staging" the photographs from Hertz's camera provided to Hertz in discovery. Herbeck denied Hertz's suggestion that Hertz's arrest was ...

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