February 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEVON GREEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-10-1661.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011 - Decided Before Judges Carchman and Graves.
Following a jury trial, defendant Jevon Green was convicted of two counts of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The trial judge sentenced defendant to time already served, which was 213 days, and one year probation to run concurrently on each count. Defendant was also required to attend psychological counseling and drug and alcohol testing.
Defendant appeals and raises one issue*fn1 - that his motion for judgment of acquittal after submission of the State's case should have been granted. We conclude that the trial judge, relying on well-established principles enunciated in State v. Reyes, 50 N.J. 454, 459 (1967), that the State is entitled to the benefit of all favorable testimony as well all favorable inferences that can be drawn from such testimony, and a reasonable jury could find defendant guilty of the charged offenses, did not err in denying the motion to dismiss. Accordingly, we affirm.
These are the relevant facts adduced during the State's case. On July 21, 2008, at approximately 10:00 p.m., Maywood police officer Kevin Madden, while on patrol in his marked police cruiser, approached a stop sign on the northbound side of Poplar Avenue near West Passaic Street when he observed a Ford Explorer, driven by a man later identified as defendant. According to Madden, what drew his attention was an "obstruction of view" in defendant's car. According to the officer, this violation included anything "hanging . . . from the rearview mirror of [a] vehicle" that might cause the driver to "not be able to actually see" "a pedestrian who may be crossing." The hanging objects were later described as "three Christmas tree style air fresheners."
Before he made a right-hand turn at the stop sign, Madden, believing that he had observed a motor-vehicle violation, followed standard protocol and entered the vehicle's registration into the on-board computer system. Calling this procedure a "short," Madden described that this method only displays basic information about the vehicle if it recovers "a hit" on whether the vehicle is involved in suspicious or criminal activity. The system immediately displayed a "hit" indicating that defendant's vehicle was listed in connection with a "wanted person," who was "wanted for contempt of court out of the Bergen County sheriff's department," which had active warrants out on this individual. Madden subsequently completed the right turn and was now "behind the gold Explorer" on Passaic Street at a red light.
After he received the "hit" on defendant's vehicle but still standing at the light, Madden determined that the warrants were outstanding for a man named Jason Green, who was not the registered owner of the vehicle. At that moment, Officer Matthew Parodi had pulled up alongside Madden as Parodi was on his way to attend to a disabled vehicle. He had also run defendant's license plate number. Madden quickly informed Parodi that "this wasn't the party" they were investigating and, consequently, Parodi drove off to his assignment. Within seconds, however, Madden realized he had not scrolled to the bottom of the screen on his vehicle's computer. Upon doing so, he learned that although the "wanted person . . . was Jason Green," he also used the "alias [of] Jevon D. Green" and apparently used the same date of birth and social security number. Jason Green was later identified as defendant's brother.
Madden pursued defendant's vehicle while it traveled down Passaic Street. As the cars approached the border between Hackensack and Maywood, Madden turned on his emergency lights and siren to alert defendant that he wanted to stop the vehicle. At first, defendant ignored Madden's request and continued about 600 feet and past several parking lots before making an abrupt stop on the side of the street. After calling in the stop to police headquarters, Madden exited his police vehicle and walked over to the vehicle.
As Madden approached defendant's vehicle, defendant rolled down his window and "began screaming" that Madden "was violating his constitutional rights . . . at the top of his lungs." Madden indicated that he was concerned that defendant was "acting irate prior to even knowing why [Madden] stopped his vehicle." Trying to ignore defendant's erratic behavior, Madden twice asked defendant for his license, registration and insurance and waited as defendant searched for the documents. Concerned about his own safety and defendant's "uncooperative" attitude, Madden went to his car and called for backup; Officer Parodi returned to the scene within minutes of the call.
Madden then returned to defendant's car, approaching the driver's side while Parodi made his way to the vehicle's passenger side. This time, Madden noticed that defendant had started to "profusely sweat" and exhibited "extreme sign[s] of nervousness." With these observations, Madden asked defendant to exit the vehicle. The officer did not elaborate on the nature of his investigation because defendant was "still behind the driver's wheel" and could "take of[f] in a high-speed pursuit . . . causing an accident." Defendant refused to leave his car, professing to Madden that he was "taking law classes and . . . kn[ew] he d[id]n't have to." Madden repeated his request numerous times and even explained that defendant was mistaken because police could make this demand and had the right to arrest him for obstructing the administration of law if he refused.
Defendant again refused to exit from his car and instead demanded that Madden bring additional officers on the scene because he believed Madden to be "corrupt." Responding to defendant's request, Madden told defendant to "look out his passenger window" where Parodi stood. Despite the presence of another officer, defendant continued to shout and yell "to the point that several residents who lived in [nearby] apartments actually came outside" to witness the commotion. Defendant's resistance and protests left Madden with no other choice but to state that he was arresting him. Madden then reached for the door handle but experienced a tug-of-war with defendant who "grabbed the interior handle of the vehicle, . . . pulling on the car door and leaning over the center console." After a few moments of resistance, Madden eventually pried the door opened, at which point defendant relented and obeyed Madden's order to exit the vehicle, even though he appeared "extremely tense" with "his fists clenched."
Madden and Parodi then escorted defendant to the sidewalk so they could question him about the investigation. But defendant continued to be difficult and began making accusations, which compelled the officers to conduct a frisk for weapons to rule out any safety concerns before proceeding further. Madden also sought to discern whether defendant, who was wearing a long-sleeved shirt, had a panther tattoo on his right forearm, which was part of the description provided in the warrant on Jason Green. Before Madden began the frisk, he explained to defendant that he "was possibly . . . [a] wanted person" and that Madden wanted to pat his waist area. Defendant immediately backed away from Madden, indicating that he had no desire to make contact with the officer. Madden then attempted to check defendant's waist area again, at which point defendant "took his hand and slammed . . . it against [Madden's] arm, moving [Madden's] arm out of the way, [and] then took both his hands and shoved [Madden] backwards."
As soon as defendant pushed him, Madden determined that he would charge defendant with "aggravated assault on a police officer[.]" Madden then reached for defendant's arm and chest whereupon defendant "began physically grabbing [Madden] and [tried] to throw [him] out of the way." As defendant accosted Madden, he began screaming "'police brutality'" even though both Parodi, who was standing nearby, and Madden told defendant to stop resisting and that he was under arrest. According to Madden, the following physical exchange then took place:
At that point I attempted to grab [defendant]. He grabbed me. We were struggling back and forth. Officer Parodi grabbed a hold of [defendant] also . . . .
[W]e fell backwards . . . [with] [defendant] on top of me and Officer Parodi on top of [defendant].
We landed - there is a small retaining wall, concrete and wood retaining wall that we landed on and . . . I struck my lower back and my tailbone, my coccyx bone . . . on the retaining wall.
Madden indicated that as a result of this incident, he suffered "a good amount of pain." Even as the officers attempted to subdue defendant, he "kept striking, flailing with his arms, striking [Madden] and Officer Parodi." The officers eventually gained enough control of defendant to place him into a squad car and sent him to headquarters for processing. At headquarters, defendant was charged with various offenses, including disorderly conduct, resisting arrest and aggravated assault on a police officer.
Defendant's arrest and the altercation also caused serious injury to Parodi. According to Madden, as they were attempting to control defendant, Madden noticed that something was wrong with Parodi, who was complaining that he had "messed up [his] hand or [that] he hurt his thumb."
Parodi testified that while attempting to assist Madden, he was struck with enough "force . . . to make [his] face go to the left." Even though Parodi felt a significant amount of pain from the facial blow, it was not until he attempted to handcuff defendant that he took note of a hand injury, realizing that his "left thumb was just dangling down" and that he "had no [control] of it, and there was a pain shooting up [his] thumb area to [his] wrist up to [his] forearm." Upon concluding that he "had no function of [his thumb]," Parodi sought medical assistance and went to Hackensack University Medical Center, where he was diagnosed with a "sprain to the left wrist area." Within a day or so, Parodi's injury worsened, and he returned to the hospital for surgery; he was ultimately out of work for eight weeks. Despite his long hiatus from work, Parodi asserted that his thumb continues to "crack" if he "do[es]n't use it for an extended period of time."
Following Parodi's testimony, the State rested. Defendant moved to dismiss "on the grounds that the State has failed to make a prima facie case." In denying the motion, the judge explained:
Under State v. Reyes, the State gets all reasonable inferences drawn for the case. At this juncture, certainly by virtue of the . . . testimony of the two officers, it is clear enough for the Court to have the inferences drawn to the State's case, and a reasonable jury could find guilt beyond a reasonable doubt of either the instant charges or some lesser included that might fall under the resisting and the assault.
So the application is denied based on the reasonable inferences that can be drawn from the State's case at this time.
While defendant testified to a far different account of the events, our narrow focus on this appeal is whether the State established a case sufficient to withstand defendant's motion for a judgment of acquittal at the conclusion of its case. Notwithstanding that consideration of this issue on appeal only requires that we consider the proofs adduced during the State's case, to complete the record, we set forth an abbreviated recitation of defendant's version of the events.
According to defendant, when stopped, he pleaded with the officers to let him stay in the car because he "ha[d] a back injury" and he would prefer not to "step out" if it was not necessary. Defendant claimed that he had been involved in several car accidents that resulted in a herniated disc and shoulder injuries. He further claimed that he was never informed why he had been stopped.
When Madden returned to his squad car to investigate defendant's background, defendant became nervous because he had "had . . . bad encounters with the police" and "didn't want to get arrested." Consequently, he made two calls while in his car, first to a friend to seek his advice and then 911; unfortunately, defendant's phone received "bad reception" and his call to the police never went through.
Upon his return to defendant's car, Madden continued to request that defendant produce his driving credentials and exit the vehicle. Defendant again refused because his experiences as a security guard and tips from a law enforcement class he once attended had led him to believe that he did not have to comply. Nevertheless, he ultimately relented and stepped out of the vehicle but began "screaming after [he] was arrested" because he "was in pain." He vividly recalled informing the officers about his "[herniated] dis[c] . . . and [his] lower back" and remembered the officers had asked him whether he "need[ed] to go to [a] hospital." Finally, defendant maintained that neither Madden nor Parodi had asked him if he was Jason Green or if he had a "panther tattoo." Defendant does not have any tattoos.
Defendant acknowledged that he "knew [his] brother was using [his] license" and that he was aware "[his] brother used [his] name as an alias before" along with defendant's date of birth and social security number. But he denied ever using force to prevent opening his car door and added that he "got out the car willingly" because he mistakenly "thought there was video surveillance[.]" Moreover, defendant claimed that it was the officers who first "grabbed [him] in a headlock" and wrestled him to the ground without any provocation by defendant. Defendant further claimed that the officers' testimony was "not entirely" accurate; that he did not fight at all or ever used his "palms to shove" the officers in the way they claim he did; and that he frequently informed them of his back injuries.
The thrust of defendant's argument is that the officers' testimony was so incredible that a reasonable jury could not accept such testimony as true and the verdict must be the result of mistake, partiality, prejudice or passion. State v. Haines, 20 N.J. 438, 446 (1956); Doe v. Arts, 360 N.J. Super. 492, 503 (App. Div. 2003).
Here, the issue of credibility is for the jury. Doe, supra, 360 N.J. Super. at 503 (quoting Haines, supra, 20 N.J. at 446-47). The standard for consideration of the a motion to dismiss at the conclusion of the State's case, see R. 3:18-1, does not generally invoke issues of credibility but relies on the favorable inferences to be drawn from the proofs presented. Nothing in this record suggests that this standard was not met here.
Defendant asserts that the stop was pretextual; however, the use of three Christmas tree style air fresheners, which the officer concluded presented an obstruction of view, see N.J.S.A. 39:3-74, provided a sufficient basis to warrant both entry of the license plate number into the on-board computer leading to a "hit" and eventual stop.
Moreover, our review of the record satisfies us that as testified to the officers, defendant's conduct, giving the State all favorable inferences, supported a charge of third-degree aggravated assault. N.J.S.A. 2C:12-1(b)(5)(a), provides that an aggravated assault occurs if defendant "[c]ommits a simple assault . . . upon . . . [a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority . . . ." The statutory scheme further defines "simple assault" as either "attempt[ing] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1). See State v. Ambroselli, 356 N.J. Super. 377, 384 (App. Div. 2003) (defining statutory elements as "requir[ing] [the State] to prove beyond a reasonable doubt that it was defendant's conscious object to cause bodily injury to an officer"). Further, "[b]odily injury 'means physical pain, illness or any impairment of physical condition.'" State v. Wallace, 158 N.J. 552, 558 (1999) (quoting N.J.S.A. 2C:11-1(a)).
There was no question that Madden and Parodi fall within the definition of law enforcement officers. Moreover, the officers' description of defendant's conduct falls well within the scope of the statute. The force of the various strikings leading to Madden's testimony about pain and Parodi's ultimate injury satisfy the bodily injury requirements of the statute. There is little question that the State proved the elements of the offense.
We reach the same result with regard to the offense of resisting arrest. A person may be convicted of third-degree resisting arrest if he "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest" and "[u]ses or threatens to use physical force or violence against the law enforcement officer . . . ." N.J.S.A. 2C:29-2(a)(3)(a). "Thus the State must prove beyond a reasonable doubt that it was defendant's conscious object to prevent his arrest." Ambroselli, supra, 356 N.J. Super. at 384-85 (finding that if it was defendant's purpose to prevent a law enforcement officer from effecting an arrest, then the statute would be satisfied) (citing N.J.S.A. 2C:2-2(b)(1)).
Again, there is no dispute that Madden and Parodi were law enforcement officers given that they approached defendant in their marked police vehicles and were dressed in police uniform. The second and third elements - that the officers were effecting an arrest, and defendant was aware of this - are also supported by the record. Madden informed defendant he was "under arrest" and to "stop resisting" after defendant had allegedly shoved and pushed Madden away during the frisk. Finally, the record supplies enough inferences to satisfy the fourth element as to whether defendant was trying to "prevent" his arrest or "[u]se[d] or threaten[ed] to use physical force or violence" to stop the officers. N.J.S.A. 2C:29-2(a)(3)(a). The injuries to the officers were included in the State's case, and with the other evidence submitted, was sufficient to withstand a motion to dismiss.
Finally, defendant filed a pro se supplemental brief that raised additional issues: 1) that defendant was under duress at the time of the incident; 2) that defendant was a victim of entrapment by police; and 3) that defendant's conduct constituted a "[d]e minimis infraction." None of these arguments were raised below, and they do not warrant appellate review. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding that an appellate court will refrain from considering questions or issues not properly presented to the trial court when the opportunity was available to the party unless those issues concern matters of great public interest).
Moreover, even addressing the arguments, we conclude that they are without merit. First, there was no proof of duress. See State v. Fogarty, 128 N.J. 59, 70 (1992) (noting that "[d]uress is an appropriate defense only when the defendant is subject to coercion through threats or use of unlawful force that a person of reasonable firmness would be unable to resist"). Second, there is no suggestion of entrapment. See State v. Florez, 134 N.J. 570, 584 (1994) (explaining that entrapment is only found when "governmental conduct [i]s 'patently wrongful in that it constitutes an abuse of lawful power, [and] perverts the proper role of government'") (quoting State v. Johnson, 127 N.J. 458, 473 (1992)).
Lastly, assault on a police officer and resisting arrest are hardly de minimus infractions. De minimis infractions, N.J.S.A. 2C:2-11, are typically those that are "trivial or the prosecution [of them] would [be] absurd." State v. Hoffman, 149 N.J. 564, 587 (1997). As described here, the offenses were sufficient to warrant prosecution.