January 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAHEED KHALID, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 09-045.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 1, 2010
Before Judges Sabatino and Alvarez.
Defendant Waheed Khalid appeals, after a trial de novo on the record, from his conviction of a violation of Keyport Municipal Ordinance 4-18.13.*fn1 For the reasons that follow, we affirm.
On June 24, 2009, defendant was found guilty after a protracted trial in the Municipal Court of the offense of obstruction of justice, N.J.S.A. 2C:29-1(a). The municipal judge imposed a fine of $606, $33 in court costs, a $50 Violent Crimes Compensation Board penalty, and a $75 Safe Neighborhood assessment. Defendant thereafter appealed. See R. 3:23.
On November 19, 2009, after de novo review of the transcript of the proceedings, and a review of the relevant segment of the security videotape depicting the incident, the Law Division judge convicted defendant of the lesser municipal disorderly conduct offense and imposed a reduced fine of $500 and $33 in court costs.
The charges resulted from defendant's encounter with two patrol officers from the Keyport Police Department, Matthew Salvatore and Shannon Hyman, on February 1, 2006. The officers pulled into a service station owned by defendant while investigating a report that a customer had just stolen an EZ-Pass from a motor vehicle at another location. When the suspect drove his car in front of the station pumps, the two patrol vehicles blocked it in. Defendant walked from the convenience store located on the premises to the area where the officers were speaking to the suspect. According to Hyman's testimony, despite being instructed to stop and step back, defendant repeatedly yelled at the officers that they needed to move their patrol cars, until they drove off camera to the side of the convenience store.
On the relevant segment of the security videotape, although defendant remains some distance away from the officers, he appears by his gestures and movements to be at least quite agitated. Defendant is seen standing a few feet from the officers and appears to be speaking to them, while they attempt to speak with the suspect. Defendant at various times raises his arm for emphasis, as if to punctuate angry speech. Not until the suspect and the officers move their cars away from the pumps does defendant disappear from camera range.
As the municipal judge commented, the security tape "tells only part of the story" because it does not have an audio component. The judge found Hyman credible when she said that as she arrived on the scene, defendant approached, "yelling that he wanted the cars out of the way." The judge also found defendant's son's testimony to be credible that the officers, particularly Hyman, were disturbed by his father's conduct. The judge noted that the fact that the officers took issue with defendant, and not either the station attendant or defendant's son, corroborated that defendant alone interfered with the investigation. Based on the officers' testimony and the videotape, the judge found defendant guilty of obstruction.
On the de novo appeal, the Law Division judge correctly stated that he was obliged to review the credibility findings of the municipal judge deferentially, because that judge had the opportunity to observe the witnesses' demeanor. See State v. Locurto, 157 N.J. 463, 474 (1999). Defendant, in the Municipal Court, in the Law Division, and now on appeal, has listed numerous points where the security tape and Hyman's testimony are arguably at variance, which in his view compel the conclusion that Hyman is an incredible witness.
As the Law Division judge noted, the significant lapse of time from the date of the incident on February 1, 2006, to the dates of Hyman's trial testimony on October 21, 2008, and December 9, 2008, made it likely that Hyman's recollection of details would have diminished to some degree. That judge concluded, as we do, that these inconsistencies did not make Hyman an incredible witness, just an imperfect one. The Law Division judge also noted that defendant's agitation was visible on the security tape, including "some hand gestures . . . ."
Defendant was frustrated, as it was actually the second time that day that police cars blocked his pumps while conducting an investigation. He was obviously concerned over losing business from a passing driver's natural reluctance to patronize a gas station in which police are present. That understandable proprietary concern does not justify his interference, however, with a police investigation. The behavior could have unwittingly jeopardized the safety of the officers, defendant himself, or the public.
Although the Law Division judge agreed that defendant's conduct constituted obstruction of justice, he nonetheless amended the summons and found defendant guilty only of the lesser municipal ordinance violation. He explained that he did so because defendant had no prior criminal history and is a reputable business person in the community who was quite troubled by the prospect of acquiring a criminal record. He reduced the fine accordingly and vacated the penalties.
Our standard of review requires us to assess whether there was "sufficient credible evidence" in the record to uphold the Law Division's findings. State v. Johnson, 42 N.J. 146, 162 (1964). "[I]t [is] improper for [us] to engage in an independent assessment of the evidence as if [we] were the court of first instance." Locurto, supra, 157 N.J. at 471. Essentially, defendant is asking us to make an independent assessment of the evidence beyond a mere sufficiency analysis, a second-guessing approach prohibited by Locurto.
The Law Division judge reasonably and appropriately deferred to the credibility findings of the municipal judge. See id. at 472-74. He did so conscientiously, after reviewing the Municipal Court transcript in addition to viewing the security videotape. See Johnson, supra, 42 N.J. at 157; State v. Cerefice, 335 N.J. Super. 374, 282-83 (App. Div. 2000). He relied upon his own conclusions as to the import of the testimony and the security tape.
After our own review of the record, of the municipal judge and the Law Division judge's findings, we conclude that there was sufficient credible evidence to find defendant guilty of the municipal ordinance violation. As the Supreme Court said in Locurto:
[T]he rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [Locurto, supra, 157 N.J. at 474.]
Based on the testimony and the tape, there is ample proof that the State established that defendant forced the officers to move their confrontation of a suspect away from the gas pumps to the side of the convenience store, despite the risks to the officers, the public, and defendant himself, inherent in the effort. Moreover, there is credible evidence that defendant was told to stop, was told that the officers were in the midst of an investigation, and was told to stop yelling. He ignored these directives. We are therefore constrained by our narrow scope of review to affirm the court's factual findings and determinations, which are supported by the requisite amount of substantial, credible evidence.