On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 09-017.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012
Before Judges Messano and Kennedy.
Defendant Brian Carter appeals from a judgment in the Law Division finding him guilty of disorderly conduct, contrary to N.J.S.A. 2C:33-2(a)(1), and resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(1). Defendant was initially tried in Asbury Park Municipal Court on March 13, 2009, and was found guilty of both charges. On August 14, 2009, defendant's de novo appeal was heard in the Law Division. The trial judge also found defendant guilty of both charges.
We briefly recite the facts garnered from the record in the municipal court. R. 3:23-8(a).
On January 20, 2008, shortly after 2:00 a.m., Asbury Park Police Officers Warraich and Finklestein, in full uniform, were on routine patrol in a marked police vehicle, when they saw a "fight was occurring . . . at the intersection of Third and Main." They saw three individuals "punching and kicking" another individual who was "moving around trying to avoid getting hit." The officers pulled over, exited their marked police vehicle, drew weapons, and told everyone to "get on the ground." Warraich specifically recalled telling the individuals "to get on the ground and that they were under arrest for disorderly fighting." Finklestein had no specific recollection that the individuals were told at that time they were under arrest.
Defendant, identified by both officers as one of the assailants, looked directly at Warraich and immediately fled on foot. Warraich began chasing defendant and repeatedly told him "to stop running, he was under arrest." After running for approximately a block, defendant tripped and Warraich caught him. Defendant lay on the ground with his arms folded beneath him and disregarded Warraich's several commands to "show . . . his hands." Finally, the officer pulled defendant's arms out from beneath his chest and placed defendant in handcuffs.
Defendant testified at trial that, at the time of the incident, he and two companions were leaving a nearby party when defendant saw an individual with a bicycle he believed had been stolen from his aunt's house two weeks earlier. Upon asking the individual about the bike, the individual became angry and hit defendant in the face. "Minutes after that", defendant saw an unmarked Lexus pull up and, fearing "gangbangers" had arrived, ran away. He acknowledged turning around while running and seeing a man chasing him with a gun, but did not notice he was in a police uniform. He stated that after he fell, a uniformed officer came up to him and kicked him in the head.
Warraich stated that after he arrested defendant he saw a Lexus at the scene that was used by members of the Asbury Park Street Crimes Unit, but explained that the vehicle was not at the scene when the officers first arrived or when defendant fled. Finklestein also stated that the officers in the Lexus arrived after defendant began running.
The municipal court judge found the officers "truthful and credible" and concluded their testimony appeared neither "rehearsed" nor "contrived." However, he did not find defendant to be credible and explained that defendant's testimony did not "ring of truth." He found defendant guilty of both disorderly conduct and resisting arrest and imposed fines and costs.
Upon de novo review, the Law Division judge found that the record supported the credibility findings of the municipal court judge. He stated the municipal court judge "carefully considered each party's recitation of the facts, and . . . had sufficient basis for accepting the officers' testimony as being more credible that that of the defendant's." The Law Division judge explicitly reached the same conclusion.
With respect to the disorderly conduct charge, after reviewing the elements of the offense, the judge concluded:
[s]etting aside the issue of whether the police are members of the public for the purposes of this statute, defendant appears to overlook the fact that the victim himself could clearly be considered a member of the public. In addition, having accepted the officers' testimony that they observed a fight on a public street, it seems irrelevant that there was no actual crowd observing this fight at the time. The statute, on its face, does not require that there be actual inconvenience or annoyance to the public, but rather that the defendant recklessly created a risk of such public inconvenience, annoyance or alarm.
As such, the Court fails to see how actively engaging in a violent altercation in the middle of a public sidewalk and on a main street could constitute anything but such a risk.
2C:33-2 provides guidance on this matter as it defines public for the purposes of this statute as . . . "affecting or likely to affect persons in a place to which the public or a substantial group has access. Among the places included [are] highways, transport facilities, schools, prisons, apartment houses, places of business or amusement or any neighborhood." He added,
This public sidewalk was clearly a place where anyone could have come upon defendant's fight. The fact that no one actually did does not negate this element of the crime. The record also supports the finding that the defendant acted recklessly with respect to engaging in this fight.
Again, although it was two a.m. and there was direct testimony from the officers as well as the defendant that there was no one else on the street at the time, the very public nature of this incident created a substantial risk that anyone could have come upon the scene during the course of a fight.
With respect to the resisting arrest charge, the judge found:
[b]ased on the facts found by this Court, there is no question that when confronted by two uniformed police officers with their guns drawn and receiving an order to get on the ground, there is no question defendant knew he was at that time under arrest. Despite this, the defendant, who was only approximately 10 to 15 feet away from a uniformed officer, fled from there when instructed to stay put. There is no question ...