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State of New Jersey v. Werner M. Plunkett


April 26, 2012


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 11-11.

Per curiam.


Argued March 6, 2012

Before Judges Baxter and Maven.

After a trial de novo in the Law Division, defendant Werner

M. Plunkett appeals from his conviction for resisting arrest in violation of N.J.S.A. 2C:29-2a(1). We affirm.

Officer Tommy Picou of the Cinnaminson Township Police Department was working on a special detail at the St. Charles Carnival, when he received a report of a man taking pictures of children in a curious manner. The officer observed defendant with a camera around his neck, taking pictures without lifting the camera to eye level. The officer approached defendant and asked him for identification. While presenting his driver's license and press pass, defendant explained that he was a photographer and taking pictures in an unusual fashion is a type of photography. The conversation between Picou and defendant was calm and orderly.

Two additional officers, Sergeant Ernest McGill and Officer William Obuchowski, responded to the scene and took over the contact with defendant. During their questioning, defendant tried to walk away from the officers, but, as McGill and Obuchowski grabbed his arms, defendant pulled away. Picou wrestled defendant to the ground, pinning his hands and camera under his body. As the police pulled defendant's arms behind his back to handcuff him, defendant suffered a dislocated shoulder and facial injuries. Defendant was charged with violating N.J.S.A. 2C:29-2a(1) (resisting arrest) and N.J.S.A 2C:33-2a(1)(disorderly conduct).

At the municipal court trial, Picou and McGill testified for the State, and defendant testified on his own behalf. Picou and McGill both stated that while defendant was speaking with McGill and Obuchowski, his voice became loud and agitated proclaiming that the police were harassing him, he was not a pedophile, and there was no reason for the police to stop him. Defendant began yelling obscenities at them, and according to McGill, defendant began flailing his arms, almost hitting him. At that point defendant was told by McGill that if he did not calm down, he would be placed under arrest for disorderly conduct and that he could not leave until they had finished with him. McGill further told defendant that he was not under arrest but was being detained until they got his information, then he would be released. According to Picou, Obuchowski told defendant he was under arrest right before Picou took defendant to the ground. Responding to the defense hearsay objection concerning Obuchowski's statement, the State argued that the statement was admissible under the state of mind exception to explain why Picou acted to take defendant to the ground. The judge admitted the statement.*fn1

Defendant testified that he was attending the carnival with his son and that he, as a newspaper photographer, takes pictures for the church and community. Because on other occasions he had been asked for his credentials, he claimed to be accustomed to responding to police officers. Defendant asserted that although initial contact with Picou was calm, when the two additional officers became involved, it was like a "dog fight." Both officers were aggressive towards him, but he claimed he remained calm during the entire interaction, and never swore or used obscenities. He further denied that he flailed his arms, heard the police tell him he was under arrest, pulled away from the officers or resisted arrest while pinned under the officer on the ground.

At the conclusion of the testimony, defense challenged the credibility of the State's witnesses. Defendant argued that the State's witnesses misrepresented the obscenity allegedly used by defendant. On direct examination, McGill testified that defendant called the officers "F-ing A-holes"; however, he acknowledged on cross-examination that his report mentioned only that defendant called them "a-holes" and that his testimony was wrong. Picou testified using the same wrong statement. Counsel argued that this material misstatement tainted the officers' credibility rendering their entire testimony unreliable. Over the argument of counsel, the municipal court judge found that the officers were credible and that the discrepancy between McGill's testimony and his report did not detract from his credibility.

Because of the unlikelihood of the events as described by defendant, the judge found that defendant was not credible. The judge focused on defendant's testimony and demeanor as critical indicia of credibility. Specifically, the judge noted that defendant did not deny that McGill warned him to calm down or risk being arrested, nor did defendant deny walking away from McGill. The judge ascribed no credibility to defendant's claim that he did not become agitated, even though he testified that it was like a "dog fight" and the officers were acting aggressively towards him. Lastly, the judge found defendant not credible since defendant had a clear recollection of minor matters, such as the position of his wallet, but could not remember being handcuffed. Upon his observation of defendant while the officers were testifying, the judge found that:

Mr. Plunkett was shaking his head in a negative [manner] in an attempt, in my mind, to suggest to me that their testimony was not accurate. This attempt to sell me with a negative shaking of the head was unsuccessful and detracts from Mr. Plunkett's credibility.

The municipal court judge ultimately found defendant not guilty of disorderly conduct, but found him guilty of resisting arrest.

Following a trial de novo in the Law Division, Judge Thomas P. Kelly reviewed the municipal court record and entertained argument. In an oral decision, he made detailed findings of fact and conclusions of law, explaining the reasons for his decision. Giving due deference to the credibility determinations of the municipal court judge, State v. Locurto, 157 N.J. 463, 472-74 (1999), the judge found that the record supported the findings, which credited the police officers' version of events. In rejecting defendant's argument that the officers were not credible due to McGill's admitted misstatement of defendant's obscenity, Judge Kelly, reading from the municipal court transcript, recounted the finding of credibility:

In the transcript as to credibility Officer Picou testified in a direct forthright fashion. At no time did he attempt to embellish. He told it like it was . . . . . . . I also find Sergeant McGill's testimony to be believable. He readily acknowledged when his testimony was not accurate, the -- we'll call it the a-hole connection all right? All right?

Judge Kelly further noted that the municipal court judge believed that McGill warned defendant that if he did not calm down he would be placed under arrest for disorderly conduct, and advised him to keep his voice down and stop yelling. Judge Kelly found that the record supported the finding that defendant was not credible in his explanation of the circumstances.

The judge then turned to the sufficiency of evidence to support a conviction for resisting arrest. Relying on State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998), Judge Kelly observed that "[t]he law is clear that the defendant must know that he is being arrested. But if the arrest is legal, police do not have to announce it [so long as the proofs establish] that the defendant knew he was being arrested and he nevertheless resisted."

Ultimately, the Law Division judge found that defendant knew or had reason to know that he was being arrested because he had been warned, the officers seized him to take him into custody, and he pulled away.

This appeal followed.

In his appeal defendant raises the following claims:







In reviewing a trial court's de novo decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the trial court's decision. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 384 (App. Div. 2000). Only when the record produces a "feeling of 'wrongness'" -- that is, when the appellate court is "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" -- will we disregard a judge's factual finding. Locurto, supra, 157 N.J. at 471 (quoting Johnson, supra, 42 N.J. at 162).

Turning first to the credibility findings rendered by the municipal court, we defer to Judge Kelly's findings as to credibility, particularly where both the Law Division and municipal court judges reached the same decision on witness credibility and found the same facts. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (citing Johnson, supra, 42 N.J. at 157). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62). Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. Ibid. (citing Locurto, supra, 157 N.J. at 474). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). Unless the municipal court and the trial court have made findings "so wide of the mark" then these findings will not be altered. Johnson, supra, 42 N.J. at 162. Here, we conclude that the findings on credibility were amply supported by the record.

Next, we turn to a review of the judge's legal determination. We owe no special deference to a trial judge's interpretation of the law; therefore, we exercise plenary review of the legal conclusions that flow from the established facts. State v. Handy, 206 N.J. 39, 45 (2011).

A person is guilty of the disorderly persons offense of resisting arrest if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. N.J.S.A. 2C:29-2a(1). Four elements must be proven to support a conviction for the offense: (1) the person making the arrest was a law enforcement officer; (2) that the officer was making an arrest; (3) defendant knew that he was being arrested by a law enforcement officer; and, (4) defendant purposely prevented or attempted to prevent the officer from effectuating the arrest. State v. Simms, 369 N.J. Super. 466, 470 (App. Div. 2004); Model Jury Charge (Criminal), "Resisting Arrest--Flight Alleged" (2007).

At issue in this case is the third element. Defendant argues the State failed to prove that he was informed that he was under arrest. A citizen's failure to obey the directions of a police officer can interfere with the public order and create a disturbance of the peace. State v. Lashinsky, 81 N.J. 1, 11-12 (1979). "[W]here an officer's instructions are obviously reasonable, in furtherance of his duties, an individual toward whom such instructions are directed has a correlative duty to obey them." Id. at 11 (citing State v. Taylor, 38 N.J. Super. 6, 30 (App. Div. 1955)).

A citizen is obligated to submit to an officer's announced intention to arrest even if the arrest is illegal. State v. Brennan, 344 N.J. Super. 136, 145 (App. Div. 2001). "Our cases hold that a citizen must submit to an 'arrest, legal or illegal.'" State v. Seymour, 289 N.J. Super. 80, 85 (App. Div. 1996) (quoting State v. Mulvihill, 57 N.J. 151, 155 (1979)). Indeed, the statute states that it is not a defense to the charge of resisting arrest that the officer acted unlawfully so long as he was acting under official authority and announced his intention to arrest prior to the resistance. N.J.S.A. 2C:29-2a(3)(b).

Additionally, a citizen must submit to an officer's lawful arrest if it is clear that the citizen should have known he was being arrested. Branch, supra, 301 N.J. Super. at 321. An officer's utterance of "the words 'You're under arrest,'" is not a necessary element of the offense. Ibid. Instead, the officer's failure to announce the arrest is but one factor to be considered in determining the ultimate question of whether a defendant knows he is under arrest. Ibid.

The offender's awareness of the officer's intention to arrest and the offender's purpose to resist the arrest are essential elements, which may be inferred from the overall sequence of events. Ibid.; N.J.S.A. 2C:29-2.

Here, the record reveals that defendant became upset after being stopped and questioned by the officers for taking pictures at the carnival. Fueled by speculation that he was a pedophile, defendant began to flail his arms, scream, yell and become verbally abusive towards the officers. Despite being advised that he was not free to walk away and to calm down or risk arrest, defendant did not comply. Rather, defendant tried to walk away, and when the officers attempted to restrain him, he pulled away, thereby resisting arrest. Based on these facts, we conclude that the record supports Judge Kelly's conclusion that defendant should have known that he was under arrest thereby satisfying the third element of the offense. We therefore defer to the judge's thorough and thoughtful opinion.


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