STATE OF NEW JERSEY v. SCOTT S. GUNDERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0643-05T20643-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT S. GUNDERSON,

Defendant-Appellant.

_______________________________________

 

Submitted March 15, 2006 - Decided July 27, 2006

Before Judges Stern and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

No. 34-05.

Lanza & Lanza, attorneys for appellant

(John E. Lanza, of counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor,

attorney for respondent (Thomas Cannavo, of

counsel and on the brief).

PER CURIAM

Defendant Scott S. Gunderson appeals from a judgment of conviction for resisting arrest, N.J.S.A. 2C:29-2a(1), entered by the Law Division on de novo review of a judgment entered by the Municipal Court of Berkeley Township. He contends that the evidence does not support his conviction and that the delay of his prosecution violated his right to a speedy trial. The finding of guilt beyond a reasonable doubt was reasonably reached on sufficient credible evidence in the record as a whole and not clearly mistaken. State v. Johnson, 42 N.J. 146, 162 (1964). In deciding defendant's speedy trial claim, the judge balanced the relevant factors in light of the circumstances and arrived at a just conclusion that is not clearly erroneous. State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). Accordingly, we affirm.

On May 18, 2003, defendant was issued summonses charging disorderly conduct, N.J.S.A. 2C:33-2, resisting arrest, N.J.S.A. 2C:29-2a(1), and a violation of Seaside Park Ordinance No. 53-58, which prohibits disorderly conduct. A trial set for July 1, 2003, was adjourned at defendant's request and rescheduled for August 19, 2003.

The record provided on appeal does not include any court orders or transcripts reflecting proceedings prior to January 11, 2005. Nonetheless, defendant's brief describes a series of events that resulted in numerous changes of venue. The State does not dispute the accuracy of that account.

Defendant filed a notice of tort claim in connection with a civil action against Seaside Park in which he sought damages for injuries sustained as a consequence of the arrest. A series of venue changes based on conflict of interest followed: from the Municipal Court of Seaside Park to the Municipal Court of Beachwood Borough, based on defendant's pending civil complaint; from Beachwood Borough to Point Pleasant Borough on August 5, 2004, based on the judge's conflict and from Point Pleasant Borough to Berkeley Township on September 9, 2004, based on the prosecutor's conflict.

Trial was scheduled for January 11, 2005, in the Municipal Court of Berkeley Township. That trial date was adjourned because the prosecutor did not have a complete file. Acknowledging that the adjournment and the prior adjournment were "through no fault of" either prosecutor, defendant asked the judge to list the next date as a date on which the case would be tried or dismissed. The judge denied that request.

On the next scheduled date, April 19, 2005, the prosecutor asked for an adjournment on the ground that one officer who "interacted" with defendant was unable to appear due to his work responsibilities because he was not working for the department on a full-time basis during the off-season in the shore community, and the other officer had been injured on the Saturday preceding the trial date. Defense counsel objected and noted that it was his third appearance on the case. The judge granted the adjournment and listed the case for trial or dismissal on the next scheduled date.

Trial was scheduled for and conducted on June 21, 2005. The State presented the testimony of Sergeant Fitzgerald, a

six-year member of the Seaside Park Police Department. On May 18, 2003, he worked the "midnight shift," between 11:00 p.m. on May 17 and 7:00 a.m. on May 18. He was on patrol, in uniform and in a marked police car. He was dispatched to 26 Farragut Avenue at approximately 12:25 a.m. Other officers responded to the dispatch. There were at least four police cars and numerous officers at the scene.

Fitzgerald saw a group of teenagers in the street who appeared to be involved in an "altercation." When the officers arrived, the group dispersed. Most of the teenagers ran to the driveway at 26 Farragut. Two young men, defendant and Scott Alexander, drew his attention. Fitzgerald saw Alexander pulling on defendant in an effort to hold him back from pursuing the teenagers who were moving out of the street and into the driveway.

Fitzgerald attempted to arrest defendant for disorderly conduct. He approached defendant, identified himself as an officer and asked defendant to stop. Defendant continued to walk away. Fitzgerald told defendant he was under arrest and attempted to handcuff him. Defendant struggled and Fitzgerald and defendant fell to the ground. The officers used pepper spray to subdue him, handcuffed him and placed him in a police car. Fitzgerald was not injured during the arrest. Defendant's two front teeth were broken.

The State presented no additional witnesses. At the close of the prosecution's case, the judge granted defendant's motion to dismiss the complaint charging fighting, N.J.S.A. 2C:33-2a(1).

Defendant and Alexander testified for the defense. They were twenty years old at the time of the incident and were spending the weekend in Seaside. They attended a party in a house on Farragut Avenue. Their friend, Dave, and others went with them. Near midnight, they decided to leave the party. Alexander stopped to say goodbye. When he reached the street, defendant and Dave were ahead of him. Alexander saw Dave "escorting" defendant away and heard another teenager yelling at defendant. He saw defendant turn back toward that teenager. Alexander, now with his friends, pushed defendant in the direction they had been walking so that they could just continue on their way. At that point the police had arrived. In his view, things had quieted down.

Defendant explained that as he and his friends were leaving the party, the boyfriend of the hostess told them to "shut the F-up" because they were being too loud. They said that they were not the ones making the noise. As he walked away, the boyfriend continued to say things, which defendant could not recall. He turned to go back to the boyfriend, but Dave grabbed him and pushed him down the street. The boyfriend continued to yell, and defendant again turned to go toward him. This time Alexander stopped him, pushing him in the opposite direction. At that point, the police arrived, put him against the wall, cuffed him, walked him down the street and then lifted him up by the cuffs and smashed him face first into the concrete. He had not resisted and said nothing other than to ask why he was being arrested. Defendant acknowledged that he was angry at the boyfriend of the hostess and angry that he was being arrested following an argument with him.

Alexander and defendant both testified that the police sprayed pepper spray at defendant after he was placed in the police car. According to Alexander, defendant was screaming and crying, and the police opened the door and sprayed him. They were taken to a police station. Because defendant was "screaming and stuff" in the jail cell, Alexander told the officers that he had been drinking and was taking prescription medication.

Both young men acknowledged that they had beer at the party. Defendant admitted he had been told not to drink alcohol while taking his prescription medication.

The municipal court judge found defendant guilty of resisting arrest, N.J.S.A. 2C:29-2, and disorderly conduct, Ordinance 53-38.

On de novo review by the Law Division, Judge Grasso found defendant guilty of resisting arrest. He vacated defendant's conviction for violation of the Seaside Park Ordinance on the ground of preemption, pursuant to N.J.S.A. 2C:1-5d and N.J.S.A. 2C:33-2. State v. Paserchia, 356 N.J. Super. 461, 466 (App. Div. 2003).

On appeal, defendant challenges his conviction as unsupported by the evidence and based on errors in the legal reasoning employed by the judge of the municipal court. While review in this court is based on the record established in the municipal court, the findings and legal conclusions we must consider are those made by the judge of the Law Division. Johnson, supra, 42 N.J. at 157. We affirm defendant's conviction for resisting arrest substantially for the reasons stated by Judge Grasso in his oral decision of August 26, 2005. Giving deference, but not "controlling deference," to the municipal court judge's conclusion that Sergeant Fitzgerald was credible, Judge Grasso noted the many consistencies between Sergeant Fitzgerald's testimony and that presented by the defense. Ibid. Specifically, he noted: the officers' arrival in marked cars and in uniform; defendant's aggressiveness, evidenced by the efforts Dave and Alexander made to keep him from turning back to the party; evidence of alcohol consumption coupled with medication; the officers' markedly different interaction with Alexander at the time of his arrest and the unlikelihood of police using pepper spray inside a patrol car they used to transport defendant to the police station.

Judge Grasso found, beyond a reasonable doubt, that defendant ignored the officer's lawful command and struggled when confronted. During that struggle he fell and did not stop struggling until he was subdued with pepper spray. He knew the officer intended to arrest him. The conviction is amply supported by the record and adequate to establish each essential element of the crime -- i.e., that defendant purposely attempted to prevent a law enforcement officer from effecting an arrest. N.J.S.A. 2C:29-2a(1). There is no basis for us to conclude that the finding is "so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.

We also see no basis for reversal of Judge Grasso's denial of defendant's speedy trial claim. Whether delay in completing prosecution is fundamentally unfair or violates a defendant's constitutional right to speedy trial, depends upon the circumstances of the case. State v. Gallegan, 117 N.J. 345, 354-55 (1989); Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 485-86, 1 L. Ed. 2d 393, 399 (1957). In considering the claim, courts "balance factors such as the length of the delay, the reasons for the delay, defendant's assertion of his right to speedy trial, and any prejudice to defendant caused by the delay." Gallegan, supra, 117 N.J. at 355 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2191, 33 L. Ed. 2d 101, 117 (1972)). Delay attributable to defendant is discounted, ibid., and prejudice is not limited to those circumstances that hinder presentation of defense but includes consideration of facts such as anxiety, impact on employment and the expense of conducting a defense. See State v. Farrell, 320 N.J. Super. 425, 452-53 (App. Div. 1999). Neither the length of the delay nor the absence of prejudice is dispositive; a balancing of the relevant factors, including the reasonableness of the justification for delay, is required.

Id. at 448; see State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983).

There is no question that the delay in this case was significant. Defendant was charged in May 2003 and not tried until June 2005. Nonetheless, defendant did not assert his right to a speedy trial until January 11, 2005. At that time, he acknowledged that prior delays were attributable to conflicts of interest that were not the fault of the State. After January 11, 2005 there was one adjournment, which was granted on April 19, 2005. That adjournment was granted because Sergeant Fitzgerald, who was directly involved in defendant's arrest, was unavailable due to work, and another officer involved was unavailable due to a recent injury. While the reasonableness of the State's justification for Fitzgerald's inability to appear on April 19, 2005, is not entirely evident, the prejudice from that adjournment is no more apparent.

The case was tried to conclusion on the next scheduled date, which was June 21, 2005. Defendant was able to defend against the charges and present a witness to corroborate his testimony. Following defendant's request for a date upon which the case would be tried or dismissed, a request that was accompanied by an admission that the prosecution could not be blamed for prior delay, there was only one additional adjournment.

The circumstances in this case are in stark contrast to those presented in Farrell, supra. In Farrell the defendant was charged on January 21, 1995, and asserted his right to a speedy trial on February 3, 1995. Trial was not completed until November 1996, more than twenty months after defendant's assertion of the right. Id. at 442. There were at least a dozen lengthy adjournments in between, most without any colorable justification or reasonable explanation. Id. at 452-53. Under those circumstances, which included additional and repeated assertions of the speedy trial right, we held that the delay was sufficiently egregious (in the sense that it was both excessive and without reasonable explanation), to warrant vacating the conviction. Ibid.

Judge Grasso "undertook the difficult task of balancing all the relevant factors relating to the respective interests of the State and the defendant[] . . . ." Merlino, supra, 153 N.J. Super. at 17. The conclusion he reached is not clearly erroneous and not subject to reversal on appeal. Ibid.

 
Affirmed.

(continued)

(continued)

11

A-0643-05T2

July 27, 2006