On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-01-00071 and 06-06-00614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Graves and J. N. Harris.
Defendant appeals from a judgment of conviction following a jury trial finding him guilty of third-degree resisting arrest, N.J.S.A. 2C:29-2(a) and fourth-degree aggravated assault, N.J.S.A. 2C:12-(1)(b)(5). The trial judge merged the two charges, and defendant was sentenced to an aggregate term of three years incarceration.*fn1 Defendant argues that three major errors infected his trial: 1) the "State had not met its burden of proof as to the count of resisting arrest," 2) defendant's "burglary conviction should not have been admitted to impeach . . . credibility, as the conviction was too remote in time," and 3) the Assistant Prosecutor "made improper comments to the jury." After a rigorous review of the record and full consideration of the arguments presented on this appeal, we conclude that defendant's judgment of conviction is incontrovertible. We affirm.
While double-parked on Anna Street in Elizabeth around 10 p.m. on April 4, 2006, defendant encountered Police Officer Rodney Dorilus, who was on a routine street patrol, in a marked police vehicle. As defendant was getting out of a Buick four-door LeSabre to retrieve some documentation, he was instructed by Officer Dorilus to get back inside the car and then was ordered to put his hands on the front hood of the police vehicle. According to Officer Dorilus, defendant "seemed to be acting kind of nervous, just like his body movement, pacing back and forth a little bit." He further described defendant's nervousness as "just eyes, body movements like twitching around. Just looked nervous like."
After initially complying with the officer's request by placing his hands on the car, defendant's next actions were described by Officer Dorilus as follows:
He put his hands on the vehicle. I said sir, you're not under arrest. I'm just patting you down for my safety. I began to pat him down. Then he removed his hands. I said please leave your hands on the car. I'm patting you down for weapons. Then he removed his hands again. At this time I said okay, sir, you're not complying with what I'm asking you to do. I'm going to handcuff you. You're not under arrest. I'm handcuffing you for my safety. You're not complying with what I'm telling you to do. When I told him to put his hands behind his back he didn't. He turned around, faced me, kind of like nudged me a little bit, and then for no apparent reason he reached for the butt of my handgun. [(Emphasis added.)]
After the State rested, and defendant's motion for acquittal was denied, he testified on his own behalf to a version of the events that was not markedly dissimilar:
Q: And did you put - - where did he tell you to put your hands on the car?
A: At that time it was on the front hood of the car.
A: I put my hands on the car. And then he said put your hands behind your back and ...