NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-10-0360.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Sabatino.
Tried by a jury, defendant B.J.P. appeals his conviction of fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1b, and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2. Defendant argues that the jury instructions were flawed in two respects. For the reasons that follow, we affirm defendant's conviction of the obstruction offense, but reverse his conviction on the resisting arrest count and remand for a new trial on that charge.
Defendant was charged in a three-count indictment with fourth-degree manufacturing marijuana, N.J.S.A. 2C:35-5a(1) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count two); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1b (count three). Count one was dismissed because the marijuana that defendant apparently was growing at his residence had been seized by the police without a warrant or an exception to the warrant requirement, and was therefore suppressed.
The jury acquitted defendant of third-degree resisting arrest, but convicted him instead on count two of the lesser-included disorderly persons offense for resisting arrest, N.J.S.A. 2C:29-2. Defendant was found guilty on the third count for obstruction.
The trial judge sentenced defendant on count three to three years of probation, subject to sixty-five days in the county jail. The judge also imposed a concurrent two-day sentence in the county jail on count two for the disorderly persons offense.
The charges against defendant stemmed from events that occurred at his home on June 24, 2010. At approximately 12:45 p.m. that afternoon, State Trooper Brent Hawkswell was dispatched to the residence in response to a telephone report of domestic violence by defendant's sixteen-year-old daughter "Krista, " who was living there. Krista testified that she had told the police dispatcher that her father was "going psycho." It appears that defendant had become agitated after Krista had noticed a marijuana plant on the deck and smashed it.
Trooper Hawkswell joined another State Trooper, Anthony Valvano, before they arrived at defendant's home. Krista greeted the troopers at the end of the driveway. She told them that she had a "verbal argument" with her father, and that he had been growing marijuana plants on the property. Krista was leading the troopers towards the back of the house when her mother (defendant's wife) emerged. Trooper Valvano went to speak with the mother while Trooper Hawkswell continued to the back of the house with Krista.
At this point, according to Trooper Hawkswell, defendant "came out of the house yelling and using obscenities" like "[g]et the fuck of my property, get a search warrant. I'm going to sue [or shoot] all you fucking troopers." Due to defendant's missing teeth and severe lisp, both troopers were unsure if defendant was saying that he was going to "sue" or instead "shoot" them.
Krista testified that defendant was "irate" and wanted the troopers off his property. However, she maintained that "[h]e was completely still" and did not approach the troopers or "get into their face[s]."
Trooper Hawkswell acknowledged hearing defendant's demand that the troopers obtain a search warrant. Nevertheless, Trooper Hawkswell's "main concern" at that point "was the safety of [Krista] and everybody else there ...