On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 10-4905.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Espinosa.
Defendant Jacques Argilagos was found guilty in the municipal court of the petty disorderly offense of disorderly conduct in violation of N.J.S.A. 2C:33-2a(1), and sentenced to pay fines, assessments and costs. He appealed to the Law Division, Rule 3:23-2, and after a trial de novo, was also found guilty of the same offense and received the same sentence. Defendant appeals, and we affirm.
Defendant's conviction arises from a dispute with a neighbor at a boarding house where they both resided at Washington Place in Passaic. According to the State's proofs, at around 7:00 p.m. on March 26, 2010, Passaic Police Officers Ortiz and Sellar responded to a call by defendant that a neighbor was harassing him and putting garbage in front of his apartment door. Officer Ortiz had been to the same location earlier that same day on two separate occasions to respond to similar complaints between defendant and his neighbors at the Washington Place boarding house.
Upon arrival, Officer Ortiz saw defendant screaming and flailing his arms at his neighbor's closed door. The neighbor, Mark Owens, eventually opened the door to speak with Officer Sellar. When defendant then attempted to fight Owens in the common hallway, Officer Ortiz directed defendant to calm down and relax. Despite Ortiz repeating this command more than eight times, defendant continued screaming at Owens antagonistically, challenging him to a fight, and waving his hands over Officer Ortiz to point at the neighbor.
On the two previous occasions Ortiz had responded to the boarding house, defendant was engaged in the same behavior, but when he was ordered to cease, defendant complied and went to his room. On this occasion, however, despite multiple warnings from Ortiz that if he continued acting wildly, he would be arrested, defendant refused to comply. Instead, he was shouting so loudly that Ortiz could not hear himself talking. As a result, defendant was arrested for disorderly conduct. According to Officer Ortiz, he did not observe any garbage in front of the door to defendant's room.
Defendant contradicted Ortiz's account. According to defendant, it was Owens who was screaming, banging on his door, and provoking a fight. At the close of evidence, the municipal court judge, crediting the State's version, found defendant guilty of disorderly conduct, N.J.S.A. 2C:33-2a(1), by engaging in "threatening" or "tumultuous" behavior with purpose to cause public inconvenience or annoyance. Specifically, the municipal court judge found:
However, the statute clearly prohibits having what's called tumultuous behavior. The testimony of Officer Ortiz is after he went . . . to the area at . . . Washington Place the third time on that particular day when he met a group of people, met the defendant in this case . . . and there was . . . an altercation.
The officer tried to calm everything do[wn], as he had done two times prior on that particular day, and to no avail. The other two times there was not a problem, regardless of who called the police.
The Court finds that behavior engaged in at that time by [defendant] violates [N.J.S.A. 2C:33-2a].
On a de novo review of the record, the Law Division judge also found defendant guilty of disorderly conduct and imposed the same sentence as the municipal court. The court reasoned:
This comes down to a clear case of credibility. In weighing credibility, the Court is permitted, in fact, indeed encouraged, to consider a number of factors. Let's look at the inherent ...