STATE OF NEW JERSEY v. J.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0266-04T40266-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.W.,

Defendant-Appellant.

________________________________

 

Submitted October 24, 2005 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Middlesex County, Docket No. 12-00513-04.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Arthur L. Marchand, designated

counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, defendant, J.W., was adjudicated delinquent by reason of an act, which if committed by an adult would constitute fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2), and found not guilty of various drug charges. He was sentenced to one-year imprisonment and to a concurrent three-year term for a violation of probation. J.W. appeals, and we affirm.

According to the State's proofs, after receiving complaints of "open air" drug dealing in the area, New Brunswick police conducted a surveillance at the corner of Remsen and Seaman Avenues at 8:00 a.m. on August 12, 2003. One hour later, Officer Sutton noticed several men loitering around the area, and four males, including J.W., remained stationed at the street corner. After observing what he suspected to be a drug transaction involving J.W., Jermaine Hill, and Alan Reed, Sutton radioed his back-up unit to make the arrests. The officers responded by driving their unmarked police van to the area where they first arrested Reed and recovered two bags of cocaine from his person. The officers then drove to the street corner, exited the unmarked police van, identified themselves as police officers, and displayed their police badges hanging around their necks.

Everyone at the corner, including J.W., fled despite the officers' order to stop. Officer Yurkovic pursued J.W., whose cap fell off his head as he ran from the police. The chase endured for less than five minutes when Officer Yurkovic yelled for J.W. to stop and get on the ground. Apparently too tired to continue running, J.W. stopped and was arrested. According to J.W., he stopped running when he saw a police car coming toward him.

In adjudicating J.W. delinquent of resisting arrest, the trial judge found that J.W. knew or had reason to know that Officer Yurkovic was a police officer because the officer identified himself and was wearing a badge, and that by running from the officer, J.W. prevented the officer from effectuating an arrest:

However, with regard to Count Six, I find him guilty. I find that Officer Yurkovich was a law enforcement Officer. Officer Yurkovich was effecting an arrest. The defendant knew or had reason to know that Officer Yurkovich was a law enforcement officer and that's because he identified himself and was wearing a badge around his neck. I find the juvenile prevented or attempted to prevent Yurkovich from effectuating arrest. I find the juvenile was resisting arrest by act of flight. I believe that's a fourth-degree crime.

J.W.'s sole issue on appeal is that the trial court erred in not granting his motion for judgment of acquittal. We disagree.

The broad test for determining whether a defendant is entitled to a judgment of acquittal at the close of the State's case under Rule 3:18-1 is "whether the evidence at that point is sufficient to warrant a conviction of the charge involved." State v. Reyes, 50 N.J. 454, 458 (1967). More specifically, the court must ascertain whether "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Id. at 459 (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)).

A person is guilty of fourth-degree resisting arrest "if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(2). Because the culpability requirement is purposeful, N.J.S.A. 2C:5-1a(2), "the State must prove . . . that it was [the] defendant's conscious object to prevent his [own] arrest." State v. Ambroselli, 356 N.J. Super. 377, 384-85 (App. Div. 2003). In other words, the State is required to "prove beyond a reasonable doubt that it was [the] defendant's conscious object to prevent his arrest." Ibid.

Here, the evidence is more than sufficient to sustain J.W.'s adjudication of delinquency for resisting arrest. Although the police pulled up in an unmarked van, the officers who exited the vehicle identified themselves as police officers and wore police badges around their necks. As soon as the officers ordered J.W., and everyone else, to stop, they failed to obey the command and fled the scene instead. The chase endured for about five minutes and only ceased when J.W. either tired of running or, by his own admission, saw a police car coming toward him. Under either version, J.W. was aware of the lawful command of the law enforcement officers and rather than comply, chose to flee to avoid his apprehension. By doing so, J.W. purposely attempted to thwart his own arrest. Accordingly, we conclude the evidence amply supports the trial court's adjudication of delinquency.

 
Affirmed.

(continued)

(continued)

5

A-0266-04T4

RECORD IMPOUNDED

November 7, 2005