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State v. Osmolski


October 22, 2010


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

Per curiam.


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.



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. Sergeant Ritter granted him permission to proceed.

Still outside the doorway, Officer Petersen then successfully grasped Jacqueline by the wrist, who was in the threshold of the doorway. As he reached for his handcuffs, Steven suddenly appeared behind Jacqueline and attempted to pull his mother back inside while shoving Officer Petersen as well.

Officer Petersen testified that as he took hold of Steven's right arm, Steven "punched me in the face." Officer Petersen retained a hold on Steven's arm as the fracas moved farther inside. Finally, Officer Petersen gained the upper hand, placed Steven in handcuffs, and escorted him out of the residence. Meanwhile, Jacqueline continued to struggle outside of the dwelling, making it difficult for Officer Campbell to restrain her. Eventually, both defendants were sufficiently subdued and were transported to police headquarters where they were charged with several offenses.


Because Jacqueline and Steven were ultimately charged with disorderly persons offenses,*fn1 their joint trial was conducted in the Evesham Township Municipal Court. The municipal court judge found defendants guilty on all counts.*fn2 Among its conclusions, the court found Jacqueline to be argumentative, loud, nasty, and "was creating a volatile situation." The court also determined that the defense testimony was unreliable and not worthy of belief. Lastly, the court held that the defense witnesses' version of events was not supported by the surveillance videorecording.


A trial de novo was held in the Law Division pursuant to Rule 3:23-8. Judge Cornelius P. Sullivan found that Jacqueline did not commit obstruction by refusing to speak with the police, and acquitted her of that charge. Steven was found not guilty of the obstruction and resisting arrest charges. However, after a careful de novo canvass of the evidence, which resulted in a credibility determination in favor of the police officers, Judge Sullivan determined that Steven was guilty of simple assault and Jacqueline was guilty of resisting arrest. The court imposed a five-day time-served sentence upon Jacqueline, also imposing certain mandatory monetary sanctions and costs, and waiving a $100 fine in light of the previously-served incarceration. In similar fashion, Steven received a five-day time-served sentence, also with mandatory monetary sanctions and costs, and a waiver of a $1,000 fine due to the previously-served incarceration. This appeal followed.

Both defendants present a single, nearly identical issue on appeal:





Distilled to its essence, defendants claim that because their Fourth Amendment rights were violated when the police invaded their home, the charges against them should be dismissed and their convictions overturned. We disagree and affirm.



Steven argues that "there is reasonable doubt with the testimony of Officer Campbell . . . as to whether or not Officer Petersen was assaulted by [Steven]." This is a challenge to the factual conclusions made by the trial judge, which implicates the exceedingly narrow scope of appellate review of such determinations. State v. Locurto, 157 N.J. 463, 470-71 (1999). On appeal from the Law Division's de novo review and disposition, our court applies the substantial evidence rule to the Law Division's proceedings. Id. at 469-71; see State v. Johnson, 42 N.J. 146, 161-62 (1964); State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

From our review of the record, notwithstanding the absence of direct visual evidence of an assault from the surveillance videorecording, we conclude that there was adequate evidential support gleaned from the testimony to sustain Judge Sullivan's finding that the State had satisfied its burden of proof as to Steven's assault beyond a reasonable doubt. Cf. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 1775, 167 L.Ed. 2d 686, 692-93 (2007)(noting "an added wrinkle in [the] case:

existence in the record of a videotape capturing the events in question").


Although defendants have made the Fourth Amendment the centerpiece of their appeals, we elect to defer consideration of their constitutional claims and address the law relating to the obligations of persons to submit to police upon being informed that they are under arrest. Under the New Jersey Code of Criminal Justice, a person who "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest," is guilty of resisting arrest. N.J.S.A. 2C:29-2(a)(1). The offense requires a purpose to prevent the arrest. State v. Ambroselli, 356 N.J. Super. 377, 383-84 (App. Div. 2003). Resisting arrest, without more, is a disorderly persons offense.

To be convicted, a defendant must know that she is being arrested since it must be her conscious object to prevent her own arrest. Id. at 383-85, 388. Even if the arrest is illegal, resistance to it will nevertheless be criminal if the arrest is done under color of official authority and is also announced. See State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997). Indeed, the final paragraph of N.J.S.A. 2C:29-2(a) does not permit an "unlawful arrest" defense where the law enforcement officer is acting under color of official authority and announces his intention to arrest. State v. Seymour, 289 N.J. Super. 80, 85 (App. Div. 1996). This provision is consonant with the firm doctrine that a person may not use force to oppose an unlawful arrest as long as unlawful force is not being employed by the arresting officer. See N.J.S.A. 2C:3-4(b)(1)(a); State v. Owens, 102 N.J. Super. 187, 200 (App. Div. 1968)(a defendant may not use force to resist an illegal arrest), modified, 54 N.J. 153 (1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed. 2d 514 (1970); State v. Casimono, 250 N.J. Super. 173, 183-84 (App. Div. 1991) (although police officers conducted an unlawful pat-down under the Fourth Amendment, defendants had no right to resist arrest), certif. denied, 127 N.J. 558, cert. denied, 504 U.S. 924, 112 S.Ct. 1978, 118 L.Ed. 2d 577 (1992).

In Casimono, we affirmed that "an illegal detention or search ordinarily will not bar a conviction for an assault, escape or other unlawful response committed by the person subjected to the unlawful police action." Casimono, supra, 250 N.J. Super. at 183. The threat to officer safety created by a defendant's act of resistance outweighed whatever deterrent effect might result from immunizing his conduct. Id. at 184. Furthermore, the defendant's acts of resisting arrest and hindering apprehension committed after an unlawful pat down by the police constituted an intervening event and therefore "were not subject to the taint of that police misconduct." Id. at 185.

Likewise, because Steven assaulted Officer Petersen subsequent to the officers' alleged unlawful entry, his simple assault conviction stands notwithstanding possible police misconduct. See ibid.; State v. Williams, 192 N.J. 1, 17 (2007)("Police may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct and causally connected thereto.")(quoting United States v. Bailey, 691 F.2d 1009, 1017-18 (11th Cir. 1982)).


The Fourth Amendment to the Constitution of the United States declares that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . ." U.S. Const. amend. IV. Article I, paragraph 7 of our state constitution is practically identical.

Defendants correctly posit the principle that the Fourth Amendment's apex sits squarely upon the protection of privacy in one's home. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed. 2d 639 (1980), a state statute -- authorizing officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest -- was examined under the lens of the Fourth Amendment. Ibid. The Court determined that "the reasons for upholding warrantless arrests in a public place do not apply to warrantless invasions of the privacy of the home." Id. at 576. Because "the Fourth Amendment has drawn a firm line at the entrance to the house . . . [, a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 590.

"Every man's house is his castle" is a cliché much celebrated in England and in our country.*fn3 See Semayne's Case, 5 Co. Rep. 91a, 77 Eng. Rep. 194 (K.B. 1603); Payton, supra, 445 U.S. at 596. One of the more well-spoken expressions of the maxim was that of William Pitt the Elder, in Parliament:

The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail -- its roof may shake -- the wind may blow through it -- the storm may enter, the rain may enter -- but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement.

We adhere to these principles but are convinced that they are beside the point.*fn4 We find no provenance in the law for defendants' proposition that they are entitled to reversals of their convictions due to the putative blunders of the police.*fn5

Indeed, the law is squarely to the contrary.


The ancient and firm rule is that a person detained pursuant to an arbitrary seizure -- unlike evidence obtained as a result of an unlawful search -- remains subject to custody and presentation to court. Ker v. Illinois, 119 U.S. 436, 440, 7 S.Ct. 225, 227, 30 L.Ed. 421, 423 (1886); see also Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952).

In this state we follow the same principle. See State v. Bell, 388 N.J. Super. 629, 635 (App. Div. 2006). Indeed, in State v. Egles, 308 N.J. Super. 124, 131 (App. Div. 1998), we held:

[There is] no principle which would call for a dismissal of the entire complaint because a defendant is improperly arrested. Indeed, the rule is settled to the contrary: "an illegal arrest taints only the evidence that is the product of the arrest; it does not necessarily taint an entire prosecution." [Ibid. (quoting State v. Mulcahy, 107 N.J. 467, 482 (1987)).]

This is also the teaching of Payton and many other Fourth Amendment cases. Payton, supra, 445 U.S. at 592 n.34, 100 S.Ct. at 1383 n.34, 63 L.Ed. 2d at 655 n.34. "The issue is not whether a defendant [arrested without a warrant] must stand trial, because he must do so even if the arrest is illegal." Ibid.; see also United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed. 2d 537, 547 (1980); Hadley v. Williams, 368 F. 3d 747, 749 (7th Cir. 2004)("[Defendant] was charged with and convicted of sexual offenses and sentenced to 20 years in prison. If the arrest was illegal, he is entitled to damages for the violation of his Fourth Amendment rights, though his conviction and sentence would be unaffected.").

In summary, we conclude that defendants' Fourth Amendment grievance is extraneous to the issues in this criminal appeal. Even though the fruits of an illegal arrest may be suppressed when there is a constitutional violation, "[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." Crews, supra, 445 U.S. at 474, 100 S.Ct. at 1251, 63 L.Ed. 2d at 547 (1980); see also Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed. 2d 54, 68 (1975). Furthermore, defendants' convictions are supported by substantial evidence and there is no principled way to second-guess the determinations of Judge Sullivan.


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