STATE OF NEW JERSEY v. DRAMANE BAMBA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2946-04T42946-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DRAMANE BAMBA,

Defendant-Appellant.

_________________________________________________

 

Submitted March 7, 2006 - Decided March 30, 2006

Before Judges Payne and Sabatino.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

I-04-01-0400.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Kevin G. Byrnes,

Designated Counsel and on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Robyn M. Mitchell,

Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

On January 28, 2002, defendant Dramane Bamba pled guilty to one count each of two indictments charging sale of pirated audiovisual works in violation of N.J.S.A. 2C:21-21c(4). He was given concurrent sentences of ninety-days' service in the Sheriff's Labor Assistance Program (SLAP) and three years of probation. While on probation, Bamba engaged in conduct that resulted in charges of third-degree resisting arrest, N.J.S.A. 2C:29-2a, and third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5). He was convicted by a jury only of resisting arrest. The trial judge imposed a sentence of three years in custody on defendant for that conviction. However, she also found that the commission of that offense constituted a violation of Bamba's probation, revoked that probation, and sentenced Bamba to concurrent terms of four years in custody, consecutive to the three-year term imposed for resisting arrest.

Bamba has appealed, raising the following arguments:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS PROPERLY ON THE LAW OF ATTEMPT NOTWITHSTANDING THE FACT THAT AN ATTEMPT WAS AN ESSENTIAL ELEMENT OF THE CRIME OF RESISTING ARREST.

(Not Raised Below.)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACT OF THE CASE.

(Not Raised Below.)

POINT III

THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTTED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF OBSTRUCTING JUSTICE AND HINDERING APPREHENSION.

(Partially Raised Below.)

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTTED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE DEFENDANT MUST KNOWINGLY USE FORCE.

(Not Raised Below.)

POINT V

THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.

We affirm.

I.

The trial record discloses that Officer Robert Borger was requested by another Camden police officer to transport Bamba to the Camden County Jail, located approximately three blocks away. At the time, Bamba was handcuffed. Borger placed Bamba in a police vehicle and proceeded to the jail, at which time Bamba began to bang his head against the Lexan screen separating the front and back seats of the cruiser and, when ordered to stop, then commenced to kick the rear door on the driver's side, dislodging the door's window from its frame. When Borger opened the door, Bamba's kicking continued despite an order to stop, and Borger claims to have been either struck or "kicked at" approximately twelve times. Borger thereupon used pepper spray to subdue Bamba, who was then transported to the hospital for treatment. No injuries to either man were reported.

II.

Bamba first argues that because he was already arrested at the time of the conduct at issue, the judge should have instructed the jury on an "attempt" to resist arrest, which she did not do. In this connection, Bamba contends that the judge should have given an instruction that Bamba could be convicted only upon proof beyond a reasonable doubt that he took a substantial step toward the commission of a criminal act and showed a firmness of criminal purpose. We disagree. What Bamba did was to mount resistance to his existing arrest. That resistance was unsuccessful, and to that extent, Bamba's "attempt" failed in its ultimate goal. However, the crime of resisting arrest is demonstrated by evidence of conduct that seeks to thwart the arrest process. It does not require success. We perceive no need to charge attempt in this circumstance. There is nothing inchoate about Bamba's crime that would have required such an instruction so as to avoid jury confusion as to Bamba's criminal purpose, which was evident.

The purpose of the attempt statute, N.J.S.A. 2C:5-1a, is "to punish an actor whose failure to complete a crime occurs due to a fortuity, such as when a bullet misses its mark." State v. Robinson, 136 N.J. 476, 483 (1994). These were not the circumstances of Bamba's actions. Moreover, "one of the main purposes of the Code's criminal attempt statute, N.J.S.A. 2C:5-1, is to ensure that a person who acts with the purpose of committing a crime does not escape punishment merely because the crime was not completed." Ibid. No need to effectuate this statutory purpose existed here. The instruction was therefore unnecessary. The charge given by the judge on resisting arrest, which followed the model instruction and explained the elements of N.J.S.A. 2C:29-2a to the jury, was unexceptionable.

Bamba argues that the court committed plain error in failing to mold the instruction on resisting arrest to the facts of the case. We do not accept his position. Although the court did not specifically reference the evidence in her instruction on resisting arrest, this was not a lengthy or complicated case either in terms of the evidence or the law that would require such an instruction. We find no error, let alone plain error, in the instruction as given, since it clearly specified how the jury was to apply the law to the facts giving rise to Bamba's indictment. State v. Concepcion, 111 N.J. 373, 379 (1988).

Nor do we find any error in the court's failure to instruct the jury that Bamba must "knowingly" have used force. N.J.S.A. 2C:29-2a requires that to be guilty of the crime of resisting arrest, one must act purposely. The trial judge properly charged the jury with respect to this state of mind. To elevate the crime to the third degree, one must use force. We find no mens rea gap in N.J.S.A. 2C:29-2a that would require interpolation, pursuant to the "gap filling" provisions of N.J.S.A. 2C:2-2c(3), of a lesser, "knowing" state of mind in connection with the use of force. Furthermore, Bamba suggests no reasonable basis for a requirement that two different mental states be found applicable to the elements of this crime. See State v. Bakka, 350 N.J. Super. 43, 57 (App. Div. 2002), rev'd on other gr., 176 N.J. 533 (2003). Finally, the jury's conclusion that Bamba's conduct was purposeful moots any argument that the court erred in failing to instruct the jury on a lesser, knowing, state of mind.

III.

Bamba next argues that the court erred in failing to instruct the jury on the "lesser-included" offenses of obstruction of justice pursuant to N.J.S.A. 2C:29-1a, requested at the charge conference, and hindering apprehension pursuant to N.J.S.A. 2C:29-3b, which charge was not sought. We find no evidential basis in this particular case to charge either of these statutes.

New Jersey's obstruction of justice statute, N.J.S.A. 2C:29-1, as enacted, was derived from Model Penal Code (MPC) Section 242.1. Both excepted from application of the statute "flight by a person charged with a crime" and "refusal to submit to arrest." The MPC's explanatory note stated:

The effect of these exclusions is to relegate such conduct to the Section 242.2 offense of resisting arrest. This provision covers a person who, for the purpose of preventing a lawful arrest, "creates a substantial risk of bodily injury" or "employs means justifying or requiring substantial force to overcome the resistance." This language exempts from liability nonviolent refusal to submit to arrest and such minor acts of resistance as running from a policeman or trying to shake free of his grasp. The policy judgment underlying this curtailment of coverage is that authorizing criminal punishment for every trivial act of resistance would invite abusive prosecution.

Departing from the MPC model, in 2000, the New Jersey Legislature amended N.J.S.A. 2C:29-1 to include flight within its purview and to eliminate the statutory exceptions for flight by a person charged with a crime and refusal to submit to an arrest. See L. 2000, c. 18 1.

Prior to 2000, N.J.S.A. 2C:29-2 had prohibited purposely preventing a law enforcement officer from effecting a lawful arrest and doing so by force or violence. In 2000, the Legislature also amended this statute to explicitly make the prevention or the attempt to prevent arrest by flight a fourth-degree crime. L. 2000, c. 18 2. The two statutes, N.J.S.A. 2C:29-1 and -2, thus are now overlapping to the extent that they both prohibit non-violent forms of resistance to arrest.

However, N.J.S.A. 2C:29-2 is the only statute that makes it a crime to resist arrest by using or threatening the use of physical force or violence against a law enforcement officer or another, N.J.S.A. 2C:29-2a1, or by using any other means to create a substantial risk of causing physical injury to the public servant or another, N.J.S.A. 2C:29-2a2. The 2000 statutory amendments elevated these two violent offenses to third-degree crimes.

In the present matter, the court charged resisting arrest pursuant to N.J.S.A. 2C:29-2 both by use of force or violence and without the use of force or violence. Flight from arrest, pursuant to N.J.S.A. 2C:29-1 and 2C:29-2, was not evidentially supported, and properly was not charged. The charge as reflected in the jury verdict form permitted the jury to separately consider whether Bamba's offense had been accompanied by force or violence, thereby constituting a third-degree crime or whether it had not, thereby constituting a disorderly persons offense. The jury returned a verdict that found Bamba guilty of resisting arrest by the use or threat of physical force or violence or by the use of any other means to create a substantial risk of causing physical injury, a third-degree crime.

The foregoing analysis demonstrates the judge's charge to have been properly given, since it encompassed both the third-degree crime and the disorderly persons offense and permitted the jury to determine whether either had occurred. No evidential basis existed that would warrant a charge on a crime of any other degree pursuant to N.J.S.A. 2C:29-1 or otherwise warrant a separate charge pursuant to that statute. State v. Brent, 137 N.J. 107, 113-19 (1994); State v. Purnell, 126 N.J. 518, 531 (1992). And because both N.J.S.A. 2C:29-1 and -2 declared the form of non-violent resistance to arrest charged by the judge to be a disorderly persons offense containing the same elements, it was immaterial which statute was charged.

Bamba also claims for the first time that the court should have charged hindering apprehension pursuant to N.J.S.A. 2C:29-3. We find that statute to be inapplicable because of its focus in paragraph (a) upon the acts of the defendant to hinder the apprehension "of another" and because of its focus in paragraph (b) upon the suppression of evidence leading to one's own arrest. State v. Fuqua, 303 N.J. Super. 40, 46 (App. Div. 1997). Neither paragraph pertains to the conduct at issue here.

IV.

As a final matter, we affirm the sentences imposed upon Bamba, finding no violation of State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in the imposition of consecutive sentences for the violations of probation and the new crime of resisting arrest. The underlying conduct giving rise to the charges against Bamba that resulted in the original probationary terms was wholly different from that occurring when Bamba resisted arrest. Although the violations of probation resulted from the commission of another crime, thereby providing a common element to the three offenses, that fact alone in insufficient to warrant full concurrency. If the sentences on the violations of probation were run concurrently to the sentence for resisting arrest, Bamba would have the benefit of a free crime, contrary to New Jersey law. Id. at 643.

We note that the trial judge reduced Bamba's sentence for resisting arrest to a term one year below what was then the presumptive. In light of this reduction, we do not find the overall term imposed to have been excessive or its imposition to have constituted an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 392 (1989); State v. Miller, 108 N.J. 112, 133 (1987); State v. Roth, 95 N.J. 334, 359 (1984).

 
Affirmed.

The New Jersey statute thus differed somewhat from MPC Section 242.2, which made it a crime if, in order to prevent a public servant from effecting a lawful arrest, "the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance."

(continued)

(continued)

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A-2946-04T4

March 30, 2006