NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2012.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0014-11.
John Scott Abbott, attorney for appellant.
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Guadagno.
Following a municipal court trial and a trial de novo in the Law Division, defendant Thomas Swayngim was found guilty of simple assault, N.J.S.A. 2C:12-1(a)(1), and resisting arrest, N.J.S.A. 2C:29-2(a)(1). Defendant was also charged with obstructing the administration of law, N.J.S.A. 2C:29-1(a); however, he was found not guilty of the charge. Defendant raises two issues on appeal. First, the State failed to prove that he "purposely attempted or prevented the police from arresting him." Second, his "actions in his own defense were justifiable in response to the level of force used by the arresting officer." We have considered these arguments in light of the record and the applicable law and conclude they are without merit. R. 2:11-3(e)(2).
In the municipal court, Officer Macready of the Atlantic City Police Department testified he was called to the Atlantic City Rescue Mission (the Mission) on October 14, 2010, because defendant was refusing to leave. Macready testified that when he arrived at the Mission, he spoke with defendant and asked him to leave "several times, " but defendant refused and "became very combative, [and] belligerent." Macready eventually placed defendant "in an escort hold and began to escort him off the property, telling him that he had to leave." When he was asked to describe the escort hold, Macready said, "[Y]ou grab the person's arm and walk them out."
As Macready was escorting defendant from the building, defendant stated "he wasn't going to leave, " and he was "trying to pull away" from Macready. At that point, Officer Moore and another officer arrived as back up. After the officers removed defendant from the Mission, he still refused to leave and approached Macready in an aggressive manner. Macready testified he pushed defendant back to create a "reactionary gap, " and defendant "lunged towards [him]" and tried to punch him. Macready countered defendant's punch and a struggle ensued. According to Macready: "[Defendant] was told numerous times to place his hands behind his back and stop resisting arrest. He failed to comply. He was grabbing onto me, throwing punches, kicks, [and] knees." Moore testified he saw defendant punch Macready. Moore also testified he advised defendant that he was under arrest, but defendant did not comply.
Once the officers were able to handcuff defendant, they attempted to place him into the patrol car. However, Macready testified defendant was "stiffening his body and using his body weight to prevent [the officers] from placing him in the rear seat." As a result of the incident, Macready sustained "scraped knees and some scraped hands and a couple bumps, " and he experienced some "discomfort."
Defendant also testified. According to defendant, he went to the Mission "to be assigned a bed for the night, " but he "was refused." When asked if the officers gave him an opportunity to leave without incident, defendant acknowledged that "the opportunity was when [Macready] told me I need to go now and I need to leave." Defendant testified he was placed in a "choke hold and then [he] was on the ground." Defendant said that when he was on the ground, he "was kneed in the face fifteen times" and suffered "abrasions to [his] face, sprains and strains in [his] neck, and a minor concussion." Defendant also denied he was "kicking and punching" and "flailing [his] body around." Defendant maintained he "was always in compliance" with the officers' directions.
The municipal court judge found that Macready's testimony was "corroborated in large part, " and there was "no doubt [defendant] resisted arrest and . . . assaulted the police officer." The court sentenced defendant to five days of community service and a $158 fine for each offense, but the fines were suspended.
On appeal to the Law Division, defendant's attorney argued there was not enough evidence to prove defendant was guilty of resisting arrest because defendant "was pinned on the ground by the officers. He couldn't move. . . . The police officers were all around him." Similarly, defense counsel argued defendant was not guilty of simple assault because he "was ...