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State v. Osmolski

October 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JACQUELINE OSMOLSKI, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEVEN OSMOLSKI, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal Nos. 64-09 and 65-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 6, 2010

Before Judges Axelrad and J. N. Harris.

These two appeals filed by a mother and her son are calendared back-to-back and consolidated for the purposes of this opinion. Defendants Jacqueline Osmolski (Jacqueline) and Steven Osmolski, Jr. (Steven) seek to reverse their convictions primarily on the basis of what they argue was police misconduct: the entry into their home without either a warrant or exigent circumstances in violation of the Fourth Amendment. Essentially, defendants claim that because they were the victims of an improper warrantless police trespass -- including an illegal arrest as to each -- they are inoculated against these criminal proceedings and their convictions must be reversed.

Jacqueline was convicted of resisting arrest, N.J.S.A. 2C:29-2(a)(1), and Steven was convicted of simple assault, N.J.S.A. 2C:12-1(a)(1). Based upon our review of the record -- including defendants' surveillance videorecording (without audio) that depicts most, but not all, of their encounter with the arresting officers -- and in light of the arguments made by the parties, we affirm both convictions.

I.

A.

We recite the facts that were available for consideration by the Law Division in reaching its determinations. On January 5, 2009, Steven's estranged wife, Amanda Smyth (Smyth), visited the Evesham Township Police Department for assistance in retrieving her license plates from a vehicle registered in her name that she had permitted Steven to use. Smyth had asked Steven on several occasions to return the plates without success.

Upon receiving Smyth's request, Police Officer David Petersen verified Smyth's claim as the owner. Officer Petersen attempted to contact Steven by telephone but was unsuccessful. Officer Petersen then offered to follow Smyth to the Osmolski residence, where Steven resided with his mother, so Smyth could remove the license plates from the vehicle herself without interference.

After Officer Petersen determined that the vehicle was at the Osmolski residence, Smyth and her father went there to retrieve the license plates. Although the vehicle was parked at the home, the license plates were not affixed to the vehicle.

Officer Petersen confirmed that the license plates had not been previously surrendered to the New Jersey Motor Vehicle Commission, and had a police dispatcher try to reach the occupants by telephone. Finally, he and Police Officer Thomas Campbell -- both in uniform -- approached the front door and knocked or rang the doorbell. Smyth and her father remained in their vehicle parked in the street.

Jacqueline answered the door and stepped outside. Officer Petersen asked her if he could speak with Steven. Jacqueline inquired if he had a warrant. Officer Petersen repeated that he was only there to speak to her son.

According to Officer Petersen, Jacqueline became "verbally [ ] aggressive," telling him to get off her property. After repeatedly advising Jacqueline that he needed to speak with her son, Officer Petersen announced his intention to arrest her for obstruction, pursuant to N.J.S.A. 2C:29-2(a)(1). Officers Petersen and Campbell were outside the front door during this time, as was Jacqueline. Officer Petersen grabbed Mrs. Osmolski, who was then standing closer to the threshold of the doorway, by the wrist in order to place her under arrest but she resisted, retreating into the foyer area of the home and, "yelling [that] she wanted a supervisor."

The officers remained outside. A supervisor, Sergeant Ritter, was called. When the sergeant arrived, Officer Petersen updated him on the situation and expressed his intention to arrest Jacqueline. ...


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