May 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRIAN C. CARTER, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 defendant's act in fleeing from the scene in addition to his refusal to be handcuffed constitutes resisting arrest.
Defendant contends that he was not advised that he was under arrest and did not know that this person was an officer when he refused to move his hands out from under his chest. Having already found the defendant's version of the story as not credible, however, this Court finds that the defendant acted purposely when he heard the officer repeatedly order him to move his hands, yet refused to do so.
Officer Warraich clearly stated that the defendant did not fight him and was cooperative once he was in handcuffs. But the Court notes that the State is not required to prove any specific use of force by defendant for a disorderly person's resisting arrest charge.
The judge thereafter concluded that the State had proven defendant guilty of both charges beyond a reasonable doubt and imposed a sentence of fines and costs. This appeal followed.
Defendant presents the following arguments on appeal:
The Defendant's conviction for the Disorderly Person and Resisting Arrest offenses should be remanded due to ineffective assistance of trial counsel
A. The Defendant's counsel failed to produce and/or mark into evidence substantial pieces of evidence that prejudicially affected the Defendant's credibility
B. The Defendant's counsel failed to call testimonial witnesses that prejudicially affected the Defendant's credibility
C. The Defendant's counsel failed to perform the appropriate pre-trial investigation in order to properly advocate his position at trial
The municipal court judge abused his discretion by finding the Defendant guilty of Disorderly Person offense pursuant to N.J.S.A. 2C:33-2
A. There was insufficient evidence provided at trial to find the Defendant guilty of Disorderly Conduct pursuant to N.J.S.A. 2C:33-2
B. The municipal court judge failed to make proper findings on the record regarding the credibility of the State's witnesses, Officer Warraich and Officer Finklestein
C. The municipal court judge failed to make proper findings on the record regarding the credibility of the Defendant, Brian Carter
The municipal court judge abused his discretion by finding the Defendant guilty of [a] Resisting Arrest offense pursuant to N.J.S.A. 2C:29-2(a)(1)
A. There was insufficient evidence provided at trial to find the Defendant guilty of Resisting Arrest pursuant to N.J.S.A. 2C:29-2(a)(1)
B. The trial judge failed to make proper findings on the record regarding the credibility of the State's witnesses, Officer Warraich and Officer Finklestein
C. The trial judge failed to make proper findings on the record regarding the credibility of the Defendant, Brian Carter
The Defendant's Due Process rights were violated as a result of his inability to confront the alleged victim and perform cross examination
A. The State failed to call the alleged victim, Alexander Krone, as a witness at trial which violates the Defendant's Due Process right to confront said victim at trial
We have considered defendant's arguments in light of the facts and applicable law and we affirm.
Defendant argues, for the first time on appeal, that he was denied effective assistance of trial counsel. He claims counsel was ineffective because counsel failed to move into evidence defendant's medical records from Lincoln Medical and Mental Health Center dated January 21, 2008; failed to call as witnesses defendant's two companions at the scene, who defendant alleges would have corroborated his testimony; and failed to undertake a pretrial investigation pertaining to the victim of the attack.
We decline to address this issue on appeal. As a general rule, claims of ineffective assistance of counsel are best considered on applications for post-conviction relief (PCR), see Rule 7:10-2, because such claims cannot ordinarily be addressed fairly without the presentation of proofs found outside the trial record. State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.), certif. denied, 190 N.J. 393 (2007); State v. Abdullah, 372 N.J. Super. 252, 277 (App. Div. 2004). Rather, a PCR application affords a defendant the opportunity to develop a record at a hearing where counsel can explain the reasons for his or her conduct and where the trial judge can rule upon the claims, including whether counsel's conduct prejudiced defendant. State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Next, defendant argues that the "municipal court judge abused his discretion" by finding defendant guilty of both charges and in making his credibility assessments. We reject these claims.
Initially, we observe that in an appeal such as this our role is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)(citing State v. Joas, 34 N.J. 179, 184 (1961)). The Law Division determination is "de novo on the record from the municipal court" and the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011)(citing State v. Johnson, 42 N.J. 146, 157 (1964)). We thus are limited to determining whether the Law Division's de novo finding could reasonably have been reached on sufficient credible evidence present in the record. Ibid. Accordingly, our focus must be upon the determination made by the Law Division and not the municipal court.
With respect to the disorderly conduct charge, defendant asserts that "there was no one present other than the four individuals involved" and consequently, the "public element of this charge has not been met." He adds that there is nothing in the record to indicate that "defendant knowingly or purposely acted in order to cause public inconvenience, alarm or annoyance." We disagree.
In relevant part, the disorderly conduct statute provides:
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he (1) Engages in fighting or threatening, or in violent or tumultuous behavior[.] [N.J.S.A. 2C:33-2(a)(1).]
In the second paragraph following subsection (b), dealing with offensive language, there is a definition of "public":
'Public' means 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. [N.J.S.A. 2C:33-2(b).]
While it is not clear whether the legislature intended this definition to apply to the word "public" as used in subsection
(a), we assume a consistency of meaning.
Consequently, under N.J.S.A. 2C:33-2(a)(1), in order to successfully convict an accused of disorderly conduct, the State must prove beyond a reasonable doubt that the defendant intended to cause public inconvenience, public annoyance, or public alarm, or a reckless risk thereof, by fighting or threatening, or by violent or tumultuous conduct.
Defendant cites State v. Stampone, 341 N.J. Super. 247 (App. Div. 2001) in support of his position that his conviction should be overturned. In Stampone, we reversed defendant's conviction for disorderly conduct under the statute because defendant's "testy exchange" with a police officer had "no capacity to cause public inconvenience, public annoyance or public alarm." Id. at 255.
In Stampone, a police officer approached the defendant, who was parked in front of his girlfriend's home in a residential area, and the defendant twice refused to provide his last name. Id. at 249-50. After retrieving his license from the trunk of his car, the defendant got back inside his car, closed the door and reached for something on the passenger side. Id. at 250. At that point, the officer opened the driver's door, but the defendant grabbed it and slammed it shut, almost hitting the officer's legs. Ibid. The officer then grabbed and pulled defendant's arm, and defendant cursed at the officer. Ibid.
We concluded that the defendant "was not fighting, threatening nor violent," Id. at 254, and that shutting the car door was not "tumultuous" conduct under the statute. Id. at 255. Further, [t]here was no indication that passers-by were noticing any of this or congregating or, indeed, that such persons were even present. Nor was there anything inherent in defendant's conduct as to make it likely that his colloquy with [the officer] would cause public inconvenience, annoyance or alarm. And, of course, there was really no evidence that defendant acted with a purpose to cause such public reactions. [Ibid.]
Thus, the "entire incident was an unfortunate example of a police officer overreacting to innocuous conduct and a citizen treating an officer with rudeness approaching insolence that only aggravated the situation." Id. at 251-52.
The facts of Stampone are readily distinguishable from the present matter as to each element of N.J.S.A. 2C:33-2(a)(1). There, the defendant did not engage in threats, fighting or violent behavior toward the officer. Here, by contrast, defendant was engaged in a brawl on a public street corner.
Defendant contends that his conduct was not purposeful but, as we have already noted, the Law Division judge found that defendant's actions were "reckless." That is, he "consciously disregard[ed] a substantial and unjustifiable risk that the material element [of the offense] existed[ed] or [would] result from his conduct." N.J.S.A. 2C:2-2(b)(3). Specifically, defendant knew he was in a public place and knew that he was engaging in fighting behavior but completely disregarded the possibility that his conduct would cause public annoyance, inconvenience or harm. We agree with the Law Division judge that the "very public nature of this incident created a substantial risk that anyone could have come upon the scene during the course of [the fight]."
In challenging his conviction for resisting arrest, defendant asserts that he "merely kept his arms underneath his chest while lying on the ground." This argument is utterly without merit. Defendant ignores the finding by the Law Division judge that defendant had been engaged in a fight when the officers pulled up and told everyone to "get on the ground." At this point, defendant immediately fled from the scene with Warraich in pursuit telling defendant to stop because he was under arrest. These facts, which are substantially supported by the evidence adduced in the municipal court, are more than sufficient to justify defendant's conviction for resisting arrest.
A person is guilty of the disorderly person's 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:29-2(a)(1). Four elements must be proven beyond a reasonable doubt to support a conviction for the offense: (1) the person making the arrest was a law enforcement officer; (2) that person was making an arrest; (3) the defendant knew he was being arrested by a law enforcement officer; and (4) the defendant purposely prevented or attempted to prevent the law enforcement officer from effectuating the arrest. State v. Simms, 369 N.J. Super. 466, 470-71 (App. Div. 2004); see Model Jury Charge (Criminal), "Resisting Arrest - Flight Not Alleged" (2007).
The offender's awareness of the officer's intention to arrest and the offender's purpose to resist are essential elements. State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998). The offender's awareness of and purpose to resist arrest may be inferred from the overall sequence of events. See Branch, supra, 301 N.J. Super. at 321.
The overall sequence of events in this case is more than sufficient to support the charge of resisting arrest beyond a reasonable doubt. The officers were in full uniform and were driving a marked police vehicle. They came upon the fight in progress and ordered the participants to get on the ground. Defendant, who looked directly at Warraich, immediately fled and ignored the officer's repeated demands to stop because he was under arrest. Moreover, once apprehended and told to show his hands, defendant persisted in refusing to submit to arrest by holding his arms and hands beneath his body.
Defendant's challenges to the credibility findings of the municipal court judge and the Law Division judge are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Likewise, defendant's final claim that he was denied due process because the State failed to produce the victim as a witness at trial is without sufficient merit to warrant discussion in a written opinion under R. 2:11-3(e)(2). We add only that the right to confrontation applies to witnesses against the accused who "bear testimony." Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004). The victim was not called upon to testify and thus defendant was not denied his right to confront witnesses against him. Moreover, the testimony of the victim was not necessary to prove the elements of the offenses with which defendant was charged. It is sufficient to note that defendant was not charged with any offense committed against the victim, but rather was charged with disorderly conduct and resisting arrest, neither of which required the State to call the victim as a witness.
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