STATE OF NEW JERSEY IN THE INTEREST OF A.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3715-03T43715-03T4

STATE OF NEW JERSEY IN

THE INTEREST OF A.M.,

Juvenile-Appellant.

_____________________________

 

Submitted September 14, 2005 - Decided

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Passaic County, Docket No. FJ-16-891-04.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alan I. Smith,

Designated Counsel, on the brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent

(Terry Bogorad, Senior Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

A.M. appeals from an adjudication of delinquency for conduct that, if committed by an adult, would constitute resisting arrest, contrary to N.J.S.A. 2C:29-2a(2) and disorderly conduct, contrary to N.J.S.A. 2C:33-2. The trial court imposed a sixteen-month term in the custody of the Juvenile Justice Commission at the State Home for Boys, a $60 VCCB assessment and a $15 LEOTEF assessment.

Officer Laurence Cristobal of the Passaic Police Department signed complaints of juvenile delinquency, in which he charged that A.M.: possessed cocaine, contrary to N.J.S.A. 2C:35-10a(1); distributed cocaine, contrary to N.J.S.A. 2C:35-5b(3); distributed cocaine within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7; distributed cocaine within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1; resisted arrest, contrary to N.J.S.A. 2C:29-2; and engaged in disorderly conduct, contrary to N.J.S.A. 2C:33-2.

The following evidence was presented during a bench trial in the Family Part. On October 14, 2003, Officer Cristobal was assigned to Community Policing and was on patrol and in uniform. At about 2:30 in the afternoon, he saw a young woman on a bicycle give A.M. money in exchange for what looked like small, white rocks. He then saw a man in a four-door, green sedan stop his car and give A.M. money in exchange for similar white, rock-like objects. After seeing the second transaction Cristobal approached A.M. The officer described the encounter as follows:

A. I approached [A.M.], wh[om] I believe . . . observed me coming. [A.M.] then entered the vehicle and drove heading towards South Street . . . .

Q. Do you know if [A.M.] saw you as you

approached him?

A. Yes.

Q. Did you say anything to [A.M.] when you approached him?

A. Yes.

Q. What did you say?

A. Stop, police officer.

Q. And what did he do?

A. Continued on.

Q. So he got into a vehicle?

A. Yes.

Q. Did the vehicle drive away?

A. Yes.

Q. Were you able to get the license plate of the vehicle?

A. No, not -- not at the time.

Q. Okay. What did you do when the vehicle took off?

A. I immediately contacted headquarters via my radio, [gave] a description of the

vehicle.

Q. Can you describe the vehicle for us?

A. Yes, it's a green four-door Taurus

. . . .

The car Cristobal described was stopped about two blocks away, but there was no passenger in the car, only a driver. Cristobal came to the scene of the stop and identified the occupant as the person who made a purchase from A.M. Crack cocaine was found in the back seat of his car.

Ten to fifteen minutes later, Officer Clabijo stopped a car in which A.M. was a passenger. Clabijo could not recall anything about the car other than that it was a four-door passenger car. Clabijo had not heard Cristobal's radio transmission. The only thing he knew about the stop was that he was following a white van driven by Officer Martinez, who was following a young man who had come out of an alleyway and jumped into that car. There were four people in the car that Clabijo stopped. A.M. was seated in the right, rear passenger seat.

Cristobal was notified of the second car stop. When he arrived at the site, he identified A.M. as the young man who made the sales. He then told A.M. he was under arrest.

A.M. was taken to headquarters where Cristobal processed the arrest. A.M. was not cooperative. When Cristobal tried to take his fingerprints, A.M. "swerv[ed] his arms."

On the basis of this evidence, the trial judge found that the State established that A.M. resisted arrest and engaged in disorderly conduct. He found that the State failed to establish the drug charges beyond a reasonable doubt.

A.M. raises the following issues on appeal:

I. The trial court abused its discretion in

denying the juvenile's motion for a

judgment of acquittal at the end of the

State's case on the charges of resisting

arrest and disorderly conduct.

(A) The adjudication of

delinquency for resisting

arrest on charge five should be

reversed because the State

failed to prove beyond a

reasonable doubt that officer

Cristobal announced an intent

to arrest the juvenile.

(B) The adjudication of

delinquency for disorderly

conduct on charge six should be

reversed because resisting a

police officer's attempt to

fingerprint, by itself, is not

an act of disorderly conduct.

II. The adjudication of delinquency for

resisting arrest on charge five and

disorderly conduct on charge six should

be reversed because the trial court's

findings were inadequate.

III. The trial court abused its discretion

in denying the juvenile's motion for a

new trial.

IV. The aggregate disposition of sixteen

(16) months at the State Home for Boys

was manifestly excessive and an abuse

of the trial court's discretion.

(A) The trial court abused its

discretion in failing to

consider the aggravating and

mitigating factors present.

(B) The trial court abused its

discretion in failing to

articulate why consecutive

dispositions were imposed.

(C) The trial court abused its

discretion in depriving the

juvenile of his right to

allocution.

We conclude that the evidence was inadequate to support the adjudication of delinquency based upon disorderly conduct (Point I (B)) and vacate that adjudication. We conclude that the trial court's failure to articulate its findings on the elements of resisting arrest requires us to reverse and remand that adjudication (Point II). These dispositions make it unnecessary to consider A.M.'s remaining points.

A person commits the offense of disorderly conduct contrary to N.J.S.A. 2C:33-2a if "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof [the person] (1) Engages in fighting or threatening, or in violent or tumultuous behavior; or (2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor." N.J.S.A. 2C:33-2a(1)-(2). In order to establish that A.M. engaged in disorderly conduct, the State was required to "prove beyond a reasonable doubt that [A.M.] caused public inconvenience, public annoyance or public alarm, or a reckless risk thereof, by fighting, threatening, violent or tumultuous conduct, or by creating a hazardous or physically dangerous condition by an act serving no legitimate purpose of [A.M.]." State v. Stampone, 341 N.J. Super. 247, 254 (App. Div. 2001). As the State now concedes on appeal, these elements are not established by the evidence presented below, and the adjudication must be vacated.

As this court noted in Stampone, to the extent that a person engages in conduct that prevents "a police officer from performing his duties, [that conduct is] irrelevant to a disorderly persons charge pursuant to N.J.S.A. 2C:33-2." Ibid. "Preventing a police officer from performing his duties may, under proper circumstances, constitute obstruction, N.J.S.A. 2C:29-1 . . . , but it is not an element of our disorderly conduct statute." Ibid. At most, the State established that A.M., away from the public view and within the confines of the police station, made it more difficult for the officer to take his fingerprints. There is no evidence of a risk of public inconvenience, annoyance or alarm or of dangerous conduct. This evidence, considered in the light most favorable to the State, was inadequate to permit the judge to find beyond a reasonable doubt each element required for an adjudication based on disorderly conduct, and the adjudication must be vacated. See State v. Reyes, 50 N.J. 454, 458-59 (1967).

The trial court's findings on resisting arrest were inadequate to permit us to review that adjudication. See R. 1:7-4(a). An adjudication of delinquency must be based on the trial court's conclusion that the State has established each element of the offense alleged beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368, 374 (1970). For that reason, we must "evaluate [the] elements the judge considered, just as instructions are reviewed in a jury trial to determine legal error." In re L.W., 333 N.J. Super. 492, 498 (App. Div. 2000). While "the judge need not articulate detailed, subjective analyses of factors such as demeanor and appearance to support credibility on each and every witness," effective appellate review requires specific findings regarding the elements of the offense. Id. at 499. If the judge is mistaken as to the elements, then the adjudication cannot be affirmed. See State v. Locurto, 157 N.J. 463, 470 (1999) (the trial court must "state clearly its factual findings and correlate them with the relevant legal conclusions." (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980))); L.W., supra, 333 N.J. Super. at 498 (explaining the need for factual findings related to the elements of the offense).

In this case the trial court's decision does not identify the elements of resisting arrest. The court's relevant findings and legal conclusions were as follows:

I do believe that [Officer] Cristobal saw something. I do believe he -- he asked the juvenile to stop, the juvenile did not, so I find that there is a - they have sustained [the] burden of proof that he tried to elude, and I do believe that he tried -- he resisted, or he was guilty of disorderly conduct in that he would not cooperate with being fingerprinted. However, I do not believe that they have set forth, or proven their case, within -- beyond a reasonable doubt as to the drug charge, so I am going to dismiss Charge 1, Charge 2, Charge 3. I'm going to find the juvenile guilty of Charge 4 and Charge 5.

An adjudication based on resisting arrest requires findings on specific elements that are not necessarily encompassed by the phrases "tried to elude" and "tried -- he resisted." A person commits the fourth degree crime of resisting arrest if the person, "by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(2). The officer's utterance of "the words 'You're under arrest,'" is not a necessary element of the offense where the arrest is lawful. State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd on other grounds, 155 N.J. 317 (1998); cf. N.J.S.A. 2C:29-2a (the officer's failure to announce the intention to arrest is a defense where the arrest is unlawful). Nonetheless, the offender's awareness of the officer's intention to arrest and the offender's purpose to resist the arrest are essential elements. See Branch, supra, 301 N.J. Super. at 321; N.J.S.A. 2C:29-2; N.J.S.A. 2C:2-2b(1) ("A person acts purposely with respect to . . . his conduct or a result thereof if it is his conscious object to engage in [the] conduct . . . or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances . . . ."); N.J.S.A. 2C:2-2c(1) (application of prescribed culpability). The offender's awareness of and purpose to resist arrest may be inferred from the overall sequence of events. See Branch, supra, 301 N.J. Super. at 321.

Even if we were to assume that a finding of knowledge of and purpose to resist an arrest are implicit in the trial court's statement that A.M. "tried to elude" and "resisted,"

the factual findings that support the conclusion are not apparent. Because the judge found that the State failed to establish that A.M. committed any drug offense, we can only speculate about what in the sequence of events established by this evidence led the judge to conclude that A.M. knew he was under arrest. Putting aside the evidence about A.M.'s possession and distribution of small, white rock-like objects, which the judge apparently did not credit, there was no evidence that A.M. committed any offense before Cristobal directed him to "stop." Accepting the judge's apparent assessment of Officer Cristobal's testimony and demeanor, we are unable to determine whether the trial judge found all of the essential elements on the basis of adequate evidence.

Accordingly, we must vacate and remand the adjudication based on resisting arrest. Because we have not found "insufficient evidence to sustain the adjudication, there are no jeopardy consequences precluding such a remand." L.W., supra, 333 N.J. Super. at 499.

The adjudication of delinquency based upon disorderly conduct is vacated with prejudice. The adjudication based upon resisting arrest is vacated and remanded for findings of fact and conclusions of law. We do not retain jurisdiction.

 

To the extent that the judge's decision suggests a finding of eluding, contrary to subsection b of N.J.S.A. 2C:39-2, that offense is not supported by the evidence. A.M. was not operating a vehicle or vessel when given the order to stop.

Nor can we conclude that the court found that A.M. violated N.J.S.A. 2C:29-1, by taking flight to purposely obstruct the administration of law following an order to halt given for a purpose other than arrest. See State v. Doss, 254 N.J. Super. 122 (App. Div.), certif. denied, 130 N.J. 17 (1992).

(continued)

(continued)

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A-3715-03T4

RECORD IMPOUNDED

October 6, 2005