On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-03-00136.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012 -
Before Judges Simonelli and Waugh.
Defendant Michael S. Rouleau appeals from his conviction for two counts of aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5), and two counts of resisting arrest, contrary to N.J.S.A. 2C:29-2. We affirm.
We discern the following facts and procedural history from the record on appeal.
Shortly before midnight on January 16, 2010, Wildwood Police Officers Donald Boice, John Elwell, and James Stevens were dispatched to a local bar in response to a call about an unwanted patron. As Boice arrived on the scene, he noticed a man, later identified as Rouleau, walking in a crosswalk adjacent to the bar. Boice approached Rouleau and asked if he was alright and whether he had been involved in an incident at the bar. Rouleau informed Boice that he was fine and was not involved in any such incident. He continued walking away from the bar.
Shortly thereafter, one of the bar's employees came out of the bar and informed Boice that Rouleau was the unwanted patron. Boice continued his investigation at the bar, while Elwell went to question Rouleau. Elwell told Rouleau to stop so he could question him, but Rouleau continued walking. When Elwell eventually stopped Rouleau, he told Elwell that he was a military veteran and identified himself as Steven Rouleau.
Stevens arrived to provide backup for Elwell. As the officers continued to ask questions, Rouleau became "very boisterous, very loud," and used profanity. At one point, Elwell observed the resident of a nearby house come outside. Elwell did not identify the resident, take a statement, or know why the resident came out of the house.
During his interaction with the officers, Rouleau emphasized his statements by holding a lit cigarette between his thumb and index finger, pointing the lit end at the officers. He refused to extinguish the cigarette when asked, and ultimately blew smoke in Elwell's face.
Elwell testified, and the trial judge subsequently found, that Elwell told Rouleau he was under arrest at that time. Rouleau pushed Stevens in the chest, causing him to lose his balance. However, Stevens did not fall to the ground. As Elwell attempted to handcuff Rouleau, Rouleau kicked Elwell in the thigh.
Stevens attempted to restrain Rouleau, which caused Rouleau to fall to the ground. He landed with his right arm underneath him. Stevens ordered Rouleau to release his right arm so he could handcuff him, but Rouleau refused to comply. Stevens punched Rouleau in the ribcage at least twice, and again instructed him to release his arm. When Rouleau continued to disobey, Stevens punched Rouleau once in the right side of his face, after which Rouleau released his arm and was handcuffed. As the officers performed a pat down, Rouleau kicked Elwell several times. Boice eventually restrained Rouleau's legs.
Rouleau was indicted in March 2010.*fn1 A bench trial was held on January 24, 2011. Rouleau sought to introduce the testimony of an investigator from the Office of the Public Defender who had canvassed the area where Rouleau was arrested, ten months after his arrest, to determine the existence of any witnesses to the altercation between Rouleau and the officers. The investigator intended to testify that she was unable to find any witnesses, which Rouleau argued (1) supported his legal argument that there was no basis for the officers to arrest him for ...