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State v. Whitney

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PATRICIA WHITNEY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 010-02-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 2009

Before Judges Axelrad and Espinosa.

Defendant appeals from her convictions for the disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1(a)(1), and obstruction of the administration of law, N.J.S.A. 2C:29-1(a), following a trial de novo in the Law Division. We affirm.

The circumstances that gave rise to these convictions occurred when two detectives of the Bergen County Sheriff's Office arrived at defendant's residence in an effort to arrest her son, Courtney Fung, on three outstanding warrants.

Detective Brian Kelly provided the following account. He knocked on the door and displayed his identification badge. Defendant answered the door but did not open it immediately. She gestured to her son who was on the couch in the living room, and after he ran into another room, she opened the door. Detective Kelly's partner, Detective Chris Lewicki, advised that Fung had run into another room and so, Detective Kelly followed him. Defendant was belligerent, yelling and screaming, "You have [no] right to arrest my son." Fung resisted Detective Kelly's efforts to arrest him. Detective Kelly had to take Fung to the ground to handcuff him. Defendant jumped on his back and started punching and hitting him. Detective Lewicki removed her from Detective Kelly's back and assisted him with Fung's arrest.

Detective Kelly explained that he did not arrest defendant at the time because it would be unsafe to transport both her and her son in the same car when he and his partner had no additional support. They also wanted the assistance of the Teaneck Police Department for defendant's arrest. As a result, the detectives called their lieutenant from the car and the lieutenant later sent two other detectives with Teaneck police officers to arrest defendant. Detective Kelly denied telling Courtney Fung while they were in transit that he was going to arrest defendant because she complained about him.

Defendant testified that she cracked the door open when Detective Kelly knocked and announced, "Teaneck police." She stated that Detective Kelly then pushed the door open, punched her, causing her to hit the ground, and then charged through the house. Her son came into the living room and tried to calm the officer down. She stated that the officer was punching her son and she started crying and begging the officer, thinking her son was dying. She screamed at him to stop and said that she was "calling the mayor on [him]." Defendant stated that Detective Kelly was very nasty and said, "Call anyone you want, bitch."

Defendant's daughter, Felicia Fung, testified that she did not see her mother hit or punch Detective Kelly. Courtney Fung testified that Detective Kelly received a call while he was being transported to headquarters. The municipal court did not permit him to testify about any statement Detective Kelly made to him after the telephone call on hearsay grounds.

After the officers left, defendant called the Teaneck Police Department to complain about Detective Kelly's conduct.

She was arrested approximately two hours after the officers had arrested her son.

The municipal court found defendant guilty of simple assault and obstruction of the administration of law and sentenced her to fines totaling $500, appropriate penalties and costs. Defendant appealed and, following a de novo trial pursuant to Rule 3:23-8, the Law Division convicted defendant of both charges and imposed the same sentences as had been imposed in municipal court.

In this appeal, defendant raises the following issues:

POINT I

WHITNEY WAS DEPRIVED OF HER CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, TO PRESENT A DEFENSE, AND TO CONFRONT WITNESSES AGAINST HER WHEN THE TRIAL COURT BARRED ADMISSIBLE MOTIVE EVIDENCE.

POINT II

WHITNEY WAS DENIED HER RIGHT TO A FAIR TRIAL WHEN THE TRIAL JUDGE ABANDONED HIS ROLE AS IMPARTIAL TRIER OF FACT AND FOUND WHITNEY GUILTY BASED ON HIS PERSONAL BELIEFS ABOUT REASONABLE POLICE OFFICERS.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

Our review of defendant's convictions is restricted to a determination "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 472 (1999) (citations omitted). The municipal court found Detective Kelly's version of events to be more credible than that presented by the defense. The court discussed its finding in terms of the likelihood of what an experienced officer would do under the circumstances. It was the trial court's function to make credibility determinations. The fact that the court made reference to what was more likely in making that determination does not mean that the court failed to consider the evidence in an impartial manner. The opportunity of the municipal court to assess the credibility of witnesses is acknowledged in the deference paid to its credibility determinations, see State v. Kashi, 180 N.J. 45, 48 (2004); State v. Johnson, 42 N.J. 146, 157 (1964), as the Law Division did here. Therefore, the testimony of Detective Kelly that defendant hit and punched him while he was attempting to arrest her son provides sufficient, credible evidence to support her convictions.

Defendant argues that it was reversible error for the municipal court to exclude the testimony of her son that Detective Kelly had stated that he was going to arrest her in retaliation for her complaint about him to the Teaneck Police Department. The Law Division agreed that this testimony was properly excluded.

As a general rule, a trial court's evidentiary ruling will not be disturbed unless there is a clear abuse of discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); Bd. of Educ. v. Zoning Bd. of Adj. of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009).

Defendant testified that she told Detective Kelly that she was going to call the mayor to complain about him. There was, then, evidence before the court to support defendant's argument that the charges against her were prompted by Detective Kelly's motive to retaliate against her. The fact that she complained to the Teaneck Police Department - which was not Detective Kelly's employer - would have added little to this argument. Therefore, the decision to exclude this testimony, even if error, did not result in a manifest denial of justice.

Affirmed.

20100122

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