STATE OF NEW JERSEY v. DANA BUTLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3744-04T13744-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANA BUTLER,

Defendant-Appellant.

________________________________

 

Submitted February 6, 2006 - Decided February 27, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

0085-04.

Petro Cohen Petro Mataruzzo, attorneys for

appellant (Suzanne Holz Meola, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (Jack R. Martin, Assistant

County Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal by defendant, Dana Butler, from an order of the Law Division, entered after a trial de novo on the record, finding her guilty of the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a, for which she received a thirty-day suspended sentence, one-year probation, and a $250 fine. We affirm.

The State's proofs established the following. On September 11, 2003, at around 5:00 p.m., Egg Harbor Township Police Officers Collela and Reed responded to a call by a male reporting a domestic disturbance at a township residence owned by Mark Jones. Before their arrival, the officers had been informed of an intelligence report that Jones was in possession of a handgun, although the information was later proven to be mistaken. In any event, upon their arrival, the officers were met at the door by defendant, Jones' mother, who advised that there had been "a little disagreement" among her son, her stepson Juan Albino, and herself, but that the tension had abated and there was no longer any need for police intervention. However, upon repeated police requests to see the stepson for assurances, defendant became unresponsive and nervous, walking away into the residence. Because the door remained opened, the officers followed defendant inside, where they continued asking to speak to the stepson. Defendant remained unresponsive, and actually contradicted herself claiming that her stepson was in the basement and later that he had left the residence.

At some point, the officers heard a noise from the attic, but when there was no response to their call for "Juan," they went upstairs to investigate further. Officer Collela peered inside the cluttered space and saw Jones, who identified himself, standing in the corner of the attic over a kitchen knife six or seven inches long. Concerned for their safety, Officer Reed drew his handgun and yelled for Officer Collela to "[g]et him back." Collela then ordered Jones to put up his hands. Although Jones complied at first, he pulled away from Collela as the officer attempted to pat him down to ensure Jones had no other weapons on his person and to move him out of reach of the knife on the attic floor. At the same time, defendant came around Officer Reed and bumped Officer Collela, preventing him from patting Jones down.

Defendant began pushing Officer Collela from behind, screaming "this is my house, leave my son alone." When defendant got in between Collela and her son, all three fell to the floor. While on the ground, and within an arm's reach of the knife, Jones continued flailing his arms despite Collela's order to give him his hand and stop struggling. Meanwhile, defendant persisted in screaming at the officers and trying to pull Jones away from them. As Jones and Collela continued their struggle in the area near the knife, Officer Reed attempted to hold defendant away. Unable to control her despite being advised she was under arrest, Officer Reed sprayed defendant and Jones with mace. Eventually, Jones was subdued and handcuffed. Defendant was also arrested and handcuffed, but had to be forcibly placed in the police car, yelling, screaming and cursing.

Defendant gave a different version of the encounter. She claimed to have placed the first call to the police, but immediately called back to advise them the situation had been diffused and they were no longer needed. Nevertheless, the officers arrived with their guns drawn, and they only holstered their weapons after she admonished them. Once inside the house, however, they pulled their weapons out again. Defendant denied interceding on her son's behalf, but was simply reaching down to put out a cigarette when, without warning, Reed threw her against a wall. Defendant also denied interfering with Jones' arrest or resisting her own arrest, and claimed that she was attacked without provocation by the police.

As a result of this incident, defendant was charged with simple assault, N.J.S.A. 2C:12-1(a)(1); resisting arrest, N.J.S.A. 2C:29-2(a); and obstruction, N.J.S.A. 2C:29-2(a). At the municipal court trial, the simple assault charge was dismissed, and defendant's convictions on the other two offenses were merged for sentencing purposes. On de novo review in the Law Division, defendant was again found guilty of resisting arrest, the trial judge concluding:

When the Court is faced with an analysis of who did what, of course, none of us were there except those people, the Court is put in a position of having to sort out the facts and judge the facts as best they can by considering the reasonableness of the testimony and the common sense of it all. Having reviewed this testimony, almost two full readings of this lengthy transcript, I've come to the conclusion that the version given by the defense is not really credible. It doesn't make any sense at all and the version as given by the State are the facts that I find to be the facts in truth. For those reasons, I would affirm the guilt of the defendant. I believe that there was an indication of an intention to arrest. I believe that the defendant knew that she was under arrest, but continued to struggle and avoid the arrest and do find that the defendant was guilty as charged.

We are satisfied that the trial judge's findings are well supported by "'sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We, therefore, affirm substantially for the reasons stated by the trial judge in his oral decision on February 14, 2005.

 
Affirmed.

(continued)

(continued)

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A-3744-04T1

February 27, 2006