STATE OF NEW JERSEY v. ANDREW ROSS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2989-04T42989-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW ROSS,

Defendant-Appellant.

_______________________________________

 

Submitted May 30, 2006 - Decided June 28, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-06-1187.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel; James P. Sayko, on the brief).

PER CURIAM

Defendant Andrew Ross appeals from his conviction for resisting arrest, third-degree, contrary to N.J.S.A. 2C:29-2a and the sentence imposed. Defendant also challenges the judge's determination that he violated probation. For the reasons that follow, we affirm.

I.

On April 11, 2003, Asbury Park police officers Jason LaRusso (LaRusso) and April Bird (Bird) were dispatched to a convenience store on Seventh Avenue and Main Street. There, the officers met Tia Slocum (Slocum), who was at the time defendant's girlfriend. LaRusso was familiar with Slocum and defendant because earlier in the day Slocum had complained to LaRusso about a dispute she was having with defendant concerning Slocum's dog and defendant's car keys. It appears that defendant claimed that Slocum had his car keys and wanted to take Slocum's dog. At the convenience store, Slocum told LaRusso that the dispute had continued. LaRusso and Bird drove Slocum in the police car to the apartment building where Slocum resided with defendant.

LaRusso, Bird and Slocum entered the lobby of the building, where they ran into defendant who was on his way to work. Slocum and defendant began to argue about the car keys and Slocum's dog. LaRusso suggested that they go upstairs to the apartment. LaRusso testified, "I didn't want to be in a common area where a crowd could be drawn or it could become more of a problem with spectators or anything like that." LaRusso stated that, at this point, defendant's demeanor towards him was "fine" and his hostility was directed at Slocum.

LaRusso, Bird and the couple went up in the elevator to the fourth-floor apartment. After they entered the apartment, defendant and Slocum resumed their argument. LaRusso testified that he told the couple that if they could not resolve their dispute, either defendant or Slocum would have to leave the apartment. LaRusso said that defendant became irate. Defendant began to walk towards LaRusso and raised his voice.

LaRusso told defendant to step back away from him; however, defendant did not withdraw. He put his hands up and told LaRusso that he could not make him leave his apartment. According to LaRusso, defendant said, "I'm not going anywhere. You can't arrest me. I didn't do anything." LaRusso informed defendant that, because he would not "calm down," he was going to arrest him for disorderly conduct. Defendant denied that he had done anything wrong and again said that LaRusso could not arrest him.

LaRusso testified that he removed the handcuffs from his belt and reached for defendant's hand. According to LaRusso, defendant spun away and elbowed him. LaRusso said that he felt pain and was dazed. He called for back-up and sprayed defendant with mace for one second. The mace apparently had no effect and defendant began to walk to the door of the apartment. LaRusso said that he attempted to stop defendant at the doorway. Another struggle ensued, during which Bird was elbowed on the left side of her head. Defendant went into the hallway and LaRusso followed. LaRusso grabbed defendant's arm. LaRusso testified that, throughout this encounter, he repeatedly told defendant that he was under arrest and he should stop resisting arrest.

In the hall, LaRusso continued to attempt to restrain defendant. The struggle continued until they reached the stairs. Defendant ran down the steps and LaRusso followed him to the first landing. LaRusso said that he attempted to grab defendant but defendant pulled on LaRusso and the officer fell down a flight of stairs. LaRusso said that he received a large bruise to the underside of his arm.

Defendant went down the stairs and left the building with LaRusso in pursuit. The officer endeavored to restrain defendant by twisting defendant's arm behind his back and pushing him up against a car. Defendant and the officer struggled and Bird came out of the building to assist LaRusso. LaRusso said that he continued to instruct defendant to stop resisting arrest. Patrolman Carl Christie (Christie) and another officer arrived on the scene. Christie "delivered a couple of strikes with [a] closed fist to [defendant's] head area." Defendant eventually was handcuffed and taken to police headquarters.

Bird testified that, in the apartment, defendant was loud and agitated. He started walking towards LaRusso, stating that he was not going to leave the apartment and he had not done anything wrong. Bird said that LaRusso told defendant he was being placed under arrest. When LaRusso went to handcuff defendant, defendant pushed him back. LaRusso sprayed defendant with mace. Defendant walked to the door and Bird sprayed him with mace but missed. Defendant went past her and walked out of the apartment. Bird and LaRusso attempted to handcuff defendant and Bird was struck in the face.

Bird testified that outside the building, she observed that LaRusso had defendant by the arm and was holding defendant up against a car. However, LaRusso did not have control of defendant. Bird and LaRusso told defendant to stop resisting. Other officers arrived. They were trying to get defendant to the ground so that they could handcuff him. Bird said that she did not see any officer kick defendant, nor did she see any officer strike defendant in the head. Defendant was handcuffed, placed in the patrol car and taken to police headquarters.

Officer Christie also testified. He said that he was dispatched to the apartment building when an officer radioed for assistance. When he arrived, he observed LaRusso and Bird wrestling with defendant and trying to handcuff him. Christie got out of his police car. He saw that LaRusso and Bird were trying to grab defendant's arm but he was "pulling back and pushing them away." Christie tried to grab defendant's arm. Defendant pushed Christie. Christie tried again and defendant "yanked his arm away."

Christie said that he grabbed defendant's arm and there were "a few punches." Defendant grabbed Christie around the waist and they fell to the ground. Christie said that defendant threw the punches. Christie stated that he told the defendant to put his hands behind his back and stop resisting arrest but defendant was not listening. Christie said that he was able to handcuff defendant after Christie started punching defendant in the face. Christie struck defendant several times.

Slocum testified on defendant's behalf. She said that she had an argument with defendant about her dog and the car keys early in the day on April 11, 2003. Slocum flagged down Officer LaRusso, who was passing in a marked patrol vehicle. LaRusso told her that she and defendant would have to work out their differences themselves. Slocum said that after LaRusso left, defendant brought the dog back to her but their argument continued. Slocum then walked to the convenience store and called the police. Slocum asked that LaRusso not be sent to the convenience store because "he may have aggravated the situation."

LaRusso and Bird were dispatched to the store. Slocum told the officers that defendant had returned the dog but she did not have the keys to his car. The officers drove Slocum to the building where Slocum and defendant were living. They entered the building and met defendant in the lobby. LaRusso asked defendant about the car keys. According to Slocum, LaRusso was annoyed. Defendant stated that he was trying to get to work and he was late because he could not find his car keys.

The group went upstairs to the apartment. LaRusso told the couple that they were having a "stupid argument" and he had "things to do." LaRusso and defendant were having a normal conversation about the dog and the keys. Slocum asserted that LaRusso made personal comments about her relationship with defendant. Defendant told LaRusso that his "name calling" was not helping the situation.

According to Slocum, the situation escalated at this point. Voices were raised. Slocum put her dog in the bedroom. LaRusso stated that either Slocum or defendant had to leave the apartment and said something about taking one of the couple to the police station. LaRusso became annoyed and started spraying mace. Slocum said that defendant did not strike LaRusso with his elbow. Defendant went to leave the apartment and LaRusso again started spraying mace. Bird also began spraying defendant with mace.

Defendant walked out of the apartment. LaRusso and Bird followed. Slocum ran to the elevator. She took the elevator to the lobby and went outside. LaRusso, Bird and defendant were walking to the police vehicle. Other officers arrived on the scene. One officer grabbed defendant's arm and pushed it towards defendant's shoulder. Defendant told the officer to "cut it out, he wasn't doing anything." Defendant was handcuffed. Slocum said that shortly after defendant was handcuffed, Christie swung at defendant's face with a closed fist. Slocum was unsure whether Christie struck defendant.

Slocum said that when defendant fell to the ground, "they just beat him." There were between eight and twelve officers on the scene and, according to Slocum, more than one officer was striking defendant. She asserted that one of the officers kicked defendant. Another officer hit defendant with a closed fist. Slocum said that people began coming out of their homes and told the officers to stop hitting defendant.

Defendant was charged under Monmouth County Indictment No. 03-06-1187 with aggravated assault on LaRusso, N.J.S.A. 2C:12-1b(5)(a) (count one); aggravated assault on Bird, N.J.S.A. 2C:12-1b(5)(a) (count two); and resisting arrest, N.J.S.A. 2C:29-2a (count three). Defendant was tried by a jury and acquitted on counts one and two but convicted of third-degree resisting arrest. The jury found that defendant had not used physical force against LaRusso and/or Bird but had used "other means" to create a substantial risk of physical injury to one or both of the officers. Defendant was sentenced on November 5, 2004 to one-year of probation and 42 days in the county jail.

On August 23, 2005, defendant entered a plea of guilty to a disorderly persons offense. Defendant also admitted that he pled guilty to another disorderly persons offense on May 20, 2005. Defendant was found guilty of violating probation and he was re-sentenced under Indictment 03-06-1187 to an additional period of probation and 180 days in the county jail.

Defendant appeals and raises the following contentions for our consideration:

POINT ONE:

THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN DEFENDANT'S CONVICTION FOR RESISTING ARREST (Not raised below).

POINT TWO:

THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT (Not raised below).

POINT THREE:

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL (Partially raised below).

POINT FOUR:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO TELEPHONE A POSSIBLE EXCULPATORY WITNESS.

POINT FIVE:

THE TRIAL COURT ERRED IN FINDING A VIOLATION OF PROBATION.

POINT SIX.

THE SENTENCE IMPOSED IS EXCESSIVE.

II.

We first consider defendant's assertion that there was insufficient evidence to support his conviction for resisting arrest. When considering whether there is sufficient evidence to support a conviction, we must view the evidence in its entirely, give the State the benefit of all favorable evidence as well as the inferences that could reasonably be drawn from that evidence, and determine whether a jury could reasonably find defendant guilty beyond a reasonable doubt. State v. Josephs, 174 N.J. 44, 80 (2002) (citing State v. Reyes, 50 N.J. 454, 459 (1967)). Applying this standard, we are satisfied that there was more than sufficient evidence to support the jury's verdict in this case.

A person is guilty of the disorderly persons offense of resisting arrest if he "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(1). A person is guilty of a crime of the fourth degree 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). An offense under either section (1) or (2) is a crime of the third degree if the person either "[u]ses or threatens to use physical force or violence" against the officer or another, or uses "any other means to create a substantial risk of causing physical injury the public servant or another." N.J.S.A. 2C:29-2a(3)(a) and (b).

Defendant concedes that LaRusso and Bird are law enforcement officers but he argues that there was "insufficient" and "contradictory" evidence as to whether the officers were actually attempting to effectuate defendant's arrest and whether defendant purposely attempted to prevent them from doing so. However, LaRusso, Bird and Christie all testified that defendant was repeatedly told that he was going to be arrested and to stop resisting. The jury was certainly entitled to credit this testimony and find that LaRusso and Bird were endeavoring to effect defendant's arrest and defendant purposely acted to prevent the officers from doing so.

Defendant additionally argues that the State failed to disprove self-defense. A private citizen may not use force to resist arrest, if "he knows or has good reason to believe" that the person making the arrest is "an authorized police officer engaged in the performance of his duties," regardless of whether the arrest is lawful. State v. Koonce, 89 N.J. Super. 169, 184 (App. Div. 1965). However, if "the officer employs excessive and unnecessary force" when making the arrest, "[a] citizen may respond or counter with the use of reasonable force to protect himself. . . ." State v. Mulvihill, 57 N.J. 151, 156 (1970).

In support of this contention, defendant notes that Christie conceded that he punched defendant in the face several times. Defendant also notes that Slocum testified that LaRusso made certain unspecified personal comments about the couple. Defendant contends that the evidence shows that he tried to "explain the situation" but LaRusso would not listen, became annoyed and began to spray him with mace.

These contentions are without merit. Although Christie admitted that he punched defendant, this occurred outside the apartment, after defendant resisted arrest in the apartment, struggled with LaRusso and Bird, left the apartment and caused LaRusso to fall down the stairs. The jury was free to accept the officers' testimony and reject Slocum's version of the incident. The jury could reasonably find that the officers had not used excessive force in endeavoring to effect defendants' arrest.

III.

Defendant next argues that the jury instructions were flawed. We note, however, that defense counsel did not object to the charge and stated that the instructions were "super" when asked by the trial judge whether he had any objection to the charge. Consequently, we must determine whether the charge was erroneous and if so, whether any error was "clearly capable of producing an unjust result." R. 2:10-2.

A. Disorderly Persons Offense/Third-Degree Crime.

Defendant asserts that the judge "improperly lumped" together the elements for resisting arrest as a disorderly persons offense and resisting arrest as a third-degree offense. Here, the judge carefully explained the five elements that the State was required to prove to establish that defendant had committed the offense of resisting arrest in the third degree. The first four of these elements are the elements required for conviction of resisting arrest as a disorderly persons offense. The judge explained that if the State failed to prove any of the first four elements beyond a reasonable doubt, the jury must find defendant not guilty. However, if the State had proven all of the first four elements, the jury was required to continue its deliberations and determine whether the State had proven the additional element which is required to elevate the offense to a crime of the third degree.

The verdict sheet also asked the jury to determine whether defendant had resisted arrest by purposely preventing or attempting to prevent LaRusso and/or Bird from effectuating an arrest. The judge made clear in his instructions that in answering this question, the jury had to determine whether the State had proven the first four elements. The jury was required to reply by indicating "Guilty" or "Not Guilty." If defendant was found guilty, the jury was asked to make the additional findings necessary to elevate the offense to a crime of the third-degree.

We are satisfied that the instructions clearly informed the jury of the elements that must be proved to find defendant guilty of the disorderly persons offense of resisting arrest and those required to prove defendant's guilt of the third-degree offense of resisting arrest.

B. Lesser Included Offense.

Defendant asserts that the judge erred by failing to instruct the jury on the lesser offense of resisting arrest "by flight," which is a crime of the fourth degree. N.J.S.A. 2C:29-2a(2). Defense counsel did not request this charge.

To warrant a charge on a lesser offense, there must be a rational basis in the evidence to acquit the defendant of the greater charge and convict on the lesser. State v. Savage, 172 N.J. 374, 397 (2002) (citing State v. Brent, 137 N.J. 107, 117 (1994)). When a defendant does not request a charge on a lesser offense, the charge is not required unless the facts "clearly indicate" the appropriateness of the charge. State v. Sloane, 111 N.J. 293, 303 (1988) (quoting State v. Choice, 98 N.J. 295, 299 (1985)).

In this matter, defendant did not dispute that he used force against the officers. Rather, he claimed that his use of force was justified in the circumstances. The State argued that the evidence did not show an excessive use of force by the officers, nor did it show that defendant's use of force was reasonable. There was no claim by defendant that he merely resisted arrest by fleeing.

We are convinced that the evidence did not provide a "rational basis" to acquit defendant of third-degree resisting arrest and convict him of resisting arrest by flight. Savage, supra, 172 N.J. at 397. Moreover, the facts did not "clearly indicate" that a charge on resisting arrest by flight was warranted in this case. Sloane, supra, 111 N.J. at 303. The judge did not err in omitting the charge from his instructions.

C. Self-Defense Charge.

Defendant asserts that the judge failed to adequately explain how the charge of self-defense applies to the facts of this case. Defendant contends that, whereas the judge used the model jury charge on self-defense, he failed to explain or sufficiently tailor the charge to the specific evidence presented. Again, we disagree.

The judge specifically noted that defendant claimed that he had the right to resist arrest due to the use of unlawful force by the arresting officers. The judge stated, "In other words, what the State alleges as illegal resistance, the defendant maintains was justifiable self-defense." The judge emphasized that the State had the burden of disproving the claim of self- defense beyond a reasonable doubt.

The judge explained that a person may use force to resist arrest if four conditions exist. The person must reasonably believe: 1) that he is protecting himself from unlawful force; 2) he has the right to use force; 3) the use of force is immediately necessary; and 4) he is using force to protect himself. The judge added that a person may not use force to resist "any arrest he knows is made by the officer in performance of the officer's duties whether the arrest is legal or illegal, unless the officer uses unlawful force." The judge further explained what was required to show the justifiable use of force.

In our view, there was nothing erroneous about the charge and it was sufficiently tailored to the facts of this case. The judge clearly explained what the State was required to prove to rebut defendant's claim that he acted in self-defense. The judge explained how the elements of self-defense related to the particular facts of this case. Nothing more was required.

D. Mental State For Resisting Arrest.

The charge of resisting arrest requires that the State prove beyond a reasonable doubt that defendant acted "purposely." N.J.S.A. 2C:29-2a(1). Defendant notes that the judge provided the jury with instructions concerning the meaning of the term "purposely." Defendant asserts, however, that the charge was flawed because the judge did not contrast the concept of "purposely" with other lesser states of mind. Again, we disagree.

In his instructions, the judge defined three states of mind: purposely, knowingly and recklessly. The jury therefore had the ability to weigh defendant's conduct by these three different states of mind. Moreover, the judge made clear that conviction of resisting arrest required proof that defendant acted "purposely." We are not convinced that the judge erred by failing to provide any further instructions to the jury by way of a comparison of the mental states by which defendant may have acted in this matter. In our view, the jury was properly charged.

E. Use of "Other Means" to Create Risk of Injury.

As we pointed out previously, conviction of the third-degree offense of resisting arrest requires proof beyond a reasonable doubt that defendant either used or threatened to use "physical force or violence" against the officer or another, or used "any other means to create a substantial risk of causing physical injury to the public servant or another." N.J.S.A. 2C:29-2a(3)(a) and (b).

Defendant argues that the judge erred in failing to explain the meaning of the term "other means." We are convinced, however, that jurors of average intelligence, relying upon their own common experience, would readily understand the meaning of the term, when considered in the context of the charge as a whole. A further explanation of the term "other means" was not required.

IV.

Defendant additionally argues that he was denied a fair trial because of certain comments made by the prosecutor in summation.

A prosecutor is expected to make a vigorous and forceful closing argument but must confine his or her remarks to fair comments on the evidence presented at trial. State v. Frost, 158 N.J. 76, 82 (1999). Reversal of a conviction on the basis of prosecutorial misconduct is warranted only if the prosecutor's actions were "so egregious that it deprived the defendant of a fair trial." Id. at 83.

In determining whether the prosecutor's conduct was egregious, we consider: 1) whether defense counsel made timely and proper objections to any improper remarks; 2) whether the remarks were withdrawn promptly; and 3) whether the judge took appropriate action to address the improper comments by striking the remarks from the record and instruction the jury to disregard them. Ibid. If there is no objection by defense counsel, we will presume that defense counsel did not believe that the comments were prejudicial at the time they were made. State v. Irving, 114 N.J. 427, 444 (1989).

We are satisfied that the prosecutor's remarks did not deprive defendant of a fair trial. Here, the prosecutor forcefully responded to the attack by defense counsel on the credibility of the police officers. In response, the prosecutor commented that, "What do you think would happen if [the officers] lied after taking an oath, if they got on the witness stand and lied to you?"

This was not an explicit statement by the prosecutor vouching for the credibility of the officers' testimony. The prosecutor merely highlighted what the jurors had seen for themselves - that the officers had sworn to tell the truth. The prosecutor probably should not have speculated on the consequences that might result if an officer lied under oath but the brief, passing comment surely was not an example of egregious prosecutorial misconduct.

Defendant additionally contends that the prosecutor improperly called Slocum a "liar." However, the prosecutor actually stated, "I'm not going to get up here and tell you that I think Miss Slocum is a liar." Therefore, the record does not support defendant's assertion.

Defendant also says that the prosecutor improperly interjected her own personal views into the case by using the expression, "I think." Defense counsel objected to the use of that expression and the judge agreed with defense counsel. In our view, defendant was not prejudiced by the prosecutor's brief comment.

V.

The other issues raised by defendant do not warrant extensive discussion. We find no merit in defendant's assertion that the judge abused his discretion by denying defendant's request to telephone a "possibly exculpatory" witness in the middle of the trial. We are convinced that defendant had ample time prior to trial to locate the purported witness and secure his testimony. Moreover, defendant made no proffer regarding this witness' anticipated testimony. Thus, the record does not establish that the testimony of this witness would have benefited defendant in any way. Clearly, the judge did not abuse his discretion by denying defendant's application for an adjournment.

We also are unconvinced by defendant's contention that the judge erred in finding that defendant violated probation. Defendant contends that he was denied due process because he was not afforded a preliminary hearing on whether he had violated probation. We note that defendant was found to have violated probation because he had been convicted of an offense. Indeed, defendant pled guilty to two disorderly persons offenses.

A formal hearing is not required when a violation of probation is based on a subsequent conviction. Morrissey v. Brewer, 408 U.S. 471, 490, 92 S. Ct. 2593, 2605, 33 L. Ed. 2d 484, 499 (1972). Moreover, defendant's conviction of the subsequent offense is sufficient to conclusively establish that defendant violated probation. State v. Zachowski, 53 N.J. Super. 431, 441-42 (App. Div. 1959). Defendant was afforded due process when he pled guilty to the disorderly persons offenses. He also was afforded due process in the proceeding on the probation violation.

We also reject defendant's assertion that he was denied due process because the judge who presided at his trial also presided at the hearing on the probation violation. Contrary to defendant's assertion, the judge was impartial and had no vested interest in the outcome of the proceedings on the probation violation. R. 2:11-3(e)(2).

Defendant additionally contends that his sentence is excessive. We note that defendant has already served the sentence. We nevertheless conclude that defendant's sentence is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

 
Affirmed.

Slocum married defendant on July 19, 2003.

(continued)

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A-2989-04T4

June 28, 2006