STATE OF NEW JERSEY v. TIMOTHY L. HARRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0159-05T10159-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY L. HARRIS,

Defendant-Appellant.

_______________________________________________________________

 

Submitted August 22, 2006 - Decided August 30, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. App. 32-05.

Barker, Douglass & Scott, attorneys for appellant (Sharlenn E. Pratt, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Peter J. Gallagher, Assistant County Prosecutor, on the brief).

PER CURIAM

Defendant, Timothy L. Harris, appeals from the July 27, 2005 judgment of the Law Division, Atlantic County, entered following a de novo review of a proceeding in the Municipal Court of Atlantic City. The court found defendant guilty of purposely preventing a law enforcement officer from effecting a lawful arrest, in violation of N.J.S.A. 2C:29-2(a)(1), and sentenced him to pay through the municipal court a fine of $306 and mandatory assessments, penalties and applicable court costs. In this appeal, defendant contends that: (1) the State's evidence was insufficient to prove all the required elements of the charged offense beyond a reasonable doubt; and (2) the State did not prove beyond a reasonable doubt that defendant was purposefully resisting an arrest and not acting in self defense.

We have reviewed the record in light of the arguments advanced by the parties and in light of the prevailing standards of the law. We are satisfied that the Law Division's de novo findings could reasonably be reached on the credible evidence in the record. State v. Locurto, 157 N.J. 463, 472-75 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Accordingly, we affirm.

The facts may be briefly summarized. On December 3, 2004, defendant was at the Public Safety Building in the City of Atlantic City to appeal a motor vehicle license suspension and motor vehicle ticket he had received for failure to register his vehicle in a timely fashion. A receptionist informed defendant that there was an outstanding warrant for his arrest and that he could either pay the fine or be subject to the execution of the warrant. When defendant attempted to leave the building without paying the fine, the receptionist notified Officer Michael Rivera of the warrant. Rivera followed defendant down the stairs. According to defendant, he stopped on the stairwell and waited for Rivera to discuss the matter with him, however, Rivera immediately grabbed defendant by the arm and a physical altercation ensued between the two men. After several other officers arrived, defendant was sprayed with mace, subdued and placed under arrest.

According to the State's proofs, Rivera followed defendant toward the exit telling him he needed to take care of the arrest warrant, but defendant replied "no" and kept moving. When Rivera caught up with defendant and placed his hand on defendant's shoulder, repeating that defendant needed to take care of his arrest warrant, defendant uttered a profanity and punched Rivera. The altercation ended with defendant's arrest and the initiation of the disorderly persons charge for resisting arrest.

After considering the competing versions of the event, the Law Division Judge articulated the following reasons for finding defendant guilty:

It is argued in this case that the officer did not announce to the defendant that he was going to arrest this defendant. However, I am satisfied that the facts unequivocally demonstrate that he was told not only by the officer, but by the clerk at the window, and he was told that he had to pay the amount required for bail or be arrested. He left despite those admonitions to him. Officer Rivera had no choice, but to become physical by physically putting his hands on the defendant, resulted in the struggle which I already indicated, required some five or six police officers to finally be able to restrain the defendant. I think that the State clearly proved that the defendant knew he was under arrest and clearly resisted or attempted to resist that arrest. I find him guilty as he was found guilty in the court below[.]

Defendant argues that the State failed to prove beyond a reasonable doubt that he knew that an arrest was being effected or that he purposely resisted that arrest. N.J.S.A. 2C:2-2b(1) defines purposely as follows:

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature 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 or he believes or hopes that they exist.

Defendant asserts that "although the evidence suggests that defendant was aware of an outstanding warrant that had to be addressed, the evidence is insufficient to prove that Officer Rivera told defendant he was being arrested before Officer Rivera grabbed the defendant."

That argument focuses on the timing of the incident and the words used by Rivera. Defendant maintains the time between his initial encounter with Rivera and his ultimate arrest was so brief that he did not know before the physical confrontation that Rivera was arresting him immediately. The court, however, concluded that defendant was aware or should have been aware of his impending arrest, not solely because of Rivera's repeated statements that defendant had to take care of the fine or he would be arrested, but also because of statements made by the receptionist to defendant.

There is ample support in the record for the judge's conclusion that defendant knew Rivera was arresting him. It was not necessary, in this instance, that the police officer voice the exact words "You're under arrest" for the defendant to know he was being placed under arrest. See State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998). The court, as the trier of fact, could and did determine that defendant knew Rivera was attempting to effectuate an arrest.

Defendant argues that his conviction is against the weight of the evidence. That argument, however, seems to ignore the fact that the requirement of proof beyond a reasonable doubt does not require "absolute certainty." State v. Medina, 147 N.J. 43, 60 (1995). Instead, the Supreme Court adopted the following definition of reasonable doubt which expressly acknowledges that absolute certainty is not required:

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant's guilt. In this world, we know very few things with absolute certainty. In criminal cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of defendant's guilt, you must give defendant the benefit of the doubt and find him not guilty.

[Id. at 61.]

Based upon our review of the record, we are satisfied that sufficient evidence existed to support the conclusion of the Law Division Judge that defendant knew he was about to be arrested and that it was his conscious object to resist Rivera's attempt to effectuate that arrest.

Defendant's remaining argument that the State failed to prove beyond a reasonable doubt that he did not act in self defense, but rather purposefully to resist arrest, lacks sufficient merit to warrant any discussion in a written opinion. R. 2:11-3(e)(2). We, nevertheless, observe that defendant's testimony was that Officer Rivera simply put his hand on him. Therefore, there was no indication of excessive force that would have warranted a response of force from defendant. See State v. Mulvihill, 57 N.J. 151, 155 (1970); State v. Simms, 369 N.J. Super. 466, 472 (App. Div. 2004).

Affirmed.

 

(continued)

(continued)

7

A-0159-05T1

 

August 30, 2006