On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2007-058.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
State v. Rone, A-5850-07T4, and State v. Rone, A-6192-07T4, are separate appeals arising out of the same factual complex. In A-5850-07T4, defendant appeals from her conviction for the disorderly persons offense of obstruction of justice, N.J.S.A. 2C:29-1. In A-6192-07T4, she appeals from the trial court's order declaring that her conviction resulted in the forfeiture of her position as a member of the Newark City Council, N.J.S.A. 2C:51-2. We consolidate these appeals for purposes of this opinion. After reviewing the records in both appeals in light of the arguments presented, we affirm her conviction and the order of forfeiture. We deal first with A-5850-07T4.
Defendant's conviction for obstruction of justice rests upon an incident that occurred on the night of December 20, 2006, in Newark. Officer Wilson of the Rutgers University police was on mobile patrol when he saw a vehicle driving on Washington Street near its juncture with Broad Street change lanes without giving a signal. Officer Wilson signaled the car to pull over. As he pulled up behind the vehicle, he noted that there were two occupants in the car, that it had a temporary registration placard in the rear window and that the driver was not wearing a seat belt. In accordance with the department's procedures, he called for back-up before approaching the car. Officer Derek Fuerstein arrived to assist.
The two officers then approached the car, Officer Wilson on the driver's side, Officer Fuerstein on the passenger's side.
While doing so, Wilson noted that the temporary registration placard in the rear window had expired.
Music was playing loudly in the car, the driver and passenger were laughing and the driver was speaking on his cell phone. Officer Wilson told the driver, later identified as Jamil Grant, to get off the phone. Grant did not immediately do so but continued his conversation. Wilson had to repeat his direction several times before Grant obeyed. Wilson also told Grant that because the registration had expired, his vehicle could be towed. Grant eventually turned off his phone and produced a Florida driver's license.
Wilson was returning to his vehicle to investigate the status of Grant's license when another vehicle approached at a high rate of speed, pulled up and stopped in a lane of traffic parallel to and between Wilson's police car and Grant's car. Defendant got out, said she was a member of the Newark City Council, and demanded to know why Wilson had stopped Grant's car. Wilson told defendant to move her vehicle out of the lane of traffic and to get away from Grant's car. She did not comply, continuing to say she was a member of the City Council and asking why Grant had been stopped. Wilson asked for identification, but defendant said she did not have any with her. The vehicle she was driving, however, had license plates indicating it was a municipal vehicle.
Wilson had never confronted a situation such as this, and he called for the assistance of a supervisor. Acting Sergeant Joseph Churchill of the university police came to the scene and talked with defendant, who eventually pulled her car to the side. She agreed in her testimony that some eight to ten minutes had elapsed until she moved her car.
She continued, however, to stand by Grant's car and did not move when told several times to do so; she demanded to know why Grant had been stopped. Eventually, she moved from the street to the sidewalk. She announced that she was calling the "real" police and telephoned the Newark Police Department, identified herself as a councilwoman and asked for a police unit to be sent to the scene.
During the course of the event, she also mentioned that she had just attended a meeting with the Provost of the Rutgers campus. Officer Wilson testified that he was concerned that he might lose his job with the Rutgers police.
Sergeant Churchill testified that after defendant made her call to the Newark police, three patrol cars, a sergeant and a captain, all members of the Newark police department, eventually arrived at the scene.
Jamil Grant, the driver stopped by Wilson, is defendant's nephew. Grant and defendant both testified that Grant and his friend had been at her house shortly before this incident. The two young men left intending to pick up another friend and go to a night club. Grant testified that when he was stopped by the police, some period of time elapsed before anyone approached his car. He called defendant to tell her that he had been stopped and that they were just sitting in the car waiting. She told him to remain in the car, stay calm and keep his hands where the police could see them.
Defendant testified Grant was talking to her on the phone when she heard the officer yelling at Grant to get off the phone. When he hung up without saying anything further to her, she called back to make sure he was all right. She said she heard the officer yelling to get off the phone and Grant again hung up. She said she was concerned for her nephew's safety and immediately left her home without her purse to drive to the scene. She insisted her entire purpose was to make sure that nothing untoward happened to her nephew.
The entire incident took approximately fifty to fifty-five minutes. At the end, Officer Wilson placed defendant under arrest and charged her with obstruction of justice.
In light of her position with the Newark City Council, trial of this matter was transferred from the Newark Municipal Court to the Fairfield Muncipal Court. The municipal court judge found defendant guilty, and she appealed to the Law Division, where she was again found guilty, following a trial de novo. The court imposed a fine of $250, $50 in court costs, a $50 Violent Crimes Compensation Board assessment, N.J.S.A. 2C:43-3.1, and a $75 Safe Neighborhood Services Fund assessment, N.J.S.A. 2C:43-3.2. This appeal followed.
On appeal, defendant raises the following arguments:
THERE WAS INSUFFICIENT AND INSUBSTANTIAL EVIDENCE PRESENTED TO SUPPORT THE LOWER COURT'S FINDINGS THAT RONE PURPOSELY INTERFERED, PHYSICALLY AND BY INTIMIDATION, WITH OFFICER WILSON LAWFULLY PERFORMING AN OFFICIAL FUNCTION POINT II THE LOWER COURT COMMITTED PLAIN ERROR IN FAILING TO CONSIDER THE LESSER INCLUDED CHARGE OF FAILURE TO OBSERVE THE DIRECTION OF AN OFFICER, CONTRARY TO N.J.S.A. 39:4-57. (Not Raised Below)
Neither contention requires extended discussion. In defendant's initial argument she contends that she did not purposely physically interfere with Officer Wilson's investigation, nor did she intimidate him. She stresses, as she did below, that she acted out of concern for her nephew's safety. This concern, she said, was heightened by the then- recent shooting in New York City of Sean Bell by members of the New York City police.*fn1
Defendant's argument, however, equates her stated motive with purposeful conduct. The two concepts are not identical. One acts purposely "if it is his conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2b(1). This statutory definition describes an actor's mental state while committing an act, not the motivation leading an actor to commit that certain act. An actor's motivation may become relevant when a court turns to the question of an appropriate penalty, but it does not bear on the question of whether an individual acted purposely.
Her argument, moreover, overlooks the fact that her placement of her vehicle physically interfered with Officer Wilson completing his tasks, as did her initial insistence on standing next to Grant's car, despite having been told to move away from it. Wilson testified that defendant's conduct turned what should have been a routine stop, with a summons being issued, taking five to ten minutes, into a protracted event, requiring almost an hour to complete.
We consider State v. Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985), instructive. In that case, we upheld the defendant's conviction for obstruction of justice "when she attempted to move her car contrary to [the officer's] directions." Ibid. There is no analytical distinction between moving a car in the face of instructions not to do so and not moving a car in the face of instructions to do so in terms of the effect upon an ongoing police investigation.
We are satisfied the record contains ample support for defendant's conviction for obstruction of justice.
Defendant's second contention is that the trial court should have considered the motor vehicle offense of N.J.S.A. 39:4-57 as a lesser-included offense of obstruction of justice. Defendant did not raise this issue with the trial court.
N.J.S.A. 2C:1-8d(1) through (3) define a lesser-included offense. Under subsection (1), a lesser-included offense is one that may be "established by proof of the same or less than all the facts required to establish the commission of the offense charged." It is evident that the motor vehicle offense of failing to observe an officer's direction cannot qualify as a lesser-included offense of obstruction of justice under that language. The proofs required for each offense are entirely separate.
Subsection (2) is wholly inapplicable. Under this subsection, a conspiracy to commit a charged offense or an attempt to commit that charged offense is a lesser-included offense. Neither conspiracy nor attempt was involved in the present matter.
Subsection (3) provides the final definition of a lesser-included offense as one that "differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission." We agree with the State that the obstruction statute, N.J.S.A. 2C:29-1, and the motor vehicle statute, N.J.S.A. 39:4-57, contain different elements and are directed to different harms. Subsection (3) of the statute affords no basis to treat the motor vehicle offense under N.J.S.A. 39:4-57 as a lesser-included offense of N.J.S.A. 2C:29-1.
There was no error by the trial court in not sua sponte amending the charge to the motor vehicle offense.
We turn now to the issues presented in A-6192-07T4 in which defendant appeals from a trial court order which denied the motion of the Essex County Prosecutor to waive the forfeiture provisions of N.J.S.A. 2C:51-2 and directed that defendant forfeit her position as member of the Newark City Council as a consequence of her conviction for obstruction of justice. At oral argument, defendant explained that she did not seek to unseat her successor and to be restored to her seat ...