On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2010-40.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
Before Judges Simonelli and Koblitz.
Defendant Rafael A. Fernandez*fn1 appeals from a November 15, 2011 judgment of conviction for the disorderly persons offense of obstructing the administration of law,*fn2 N.J.S.A. 2C:29-1(b), after a trial de novo on the record in the Law Division. No jail term or fine was imposed. After reviewing the record in light of the contentions advanced on appeal, we reverse, finding that the Law Division applied the wrong standard of review.
The Hamilton Township SWAT*fn3 team executed a warrant at defendant's home for the arrest of defendant's older son, Rafael
G. Fernandez, who was wanted in connection with a homicide investigation. Defendant resided in the home with his wife and two sons, aged thirteen and eighteen. His seventy-five-year-old father was also visiting from the Dominican Republic.
Defendant, his wife and his father spoke only Spanish.*fn4
Defendant, who was fifty-three years old, used a cane due to a stroke he suffered two years before that left him without strength on his left side.
The State's witnesses testified as follows. Hamilton Township Police Detective Matthew Bagley was positioned in the middle of the eight-to-ten-person SWAT team, armed with a Sig Sauer .45 caliber sidearm in a holster at his side and a Heckler and Koch MP5 semi-automatic weapon in a strap over his shoulder. The team was dressed in olive-colored uniforms, with helmets and body armor, that had "Police" printed in various locations.
Sergeant Joseph Klimaszewski was at the head of the group. Upon
reaching the locked front door leading from the porch into the house,
Klimaszewski knocked and announced that he had a search*fn5
warrant. When nobody answered, Klimaszewski prepared a
battering ram to knock down the door. As he swung the ram back,
defendant came to the door and tried to hold it closed. Klimaszewski
successfully opened the door, knocking defendant back.
The SWAT team members then entered the residence, yelling numerous times in English, "police," "search warrant," and "get down on the ground." It was the job of the lead officers to clear the route to allow the remaining SWAT members to enter the residence safely and execute the warrant. Klimaszewski was the first one through the doorway. His movement through the entry hallway was obstructed by defendant's elderly father. Klimaszewski physically removed defendant's father and placed him on a couch, where he remained. Next, Bagley came in, but was obstructed in the narrow hall by defendant. Bagley looked at defendant and stated "police search warrant, get down on the ground." Defendant did not comply. Bagley then struggled with defendant, brought him to the ground, kneeled on top of him, and handcuffed his hands behind his back with the assistance of Klimaszewski. Bagley testified that defendant never tried to strike him, "[h]e just used his body weight to push against my body weight."
During Bagley's struggle with defendant, Bagley's gun discharged. Although he does not recall the weapon firing, Bagley testified that the semi-automatic machine gun somehow discharged, perhaps as a result of it getting caught on a curtain rod that had been fastened to the door that opened into the hallway leading into the room. Bagley did not initially notice that his gun had fired, but later learned it did from other officers.*fn6 Klimaszewski ...