STATE OF NEW JERSEY v. GARRY AND REGINA MCCARTHY



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1669-06T51669-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARRY AND REGINA MC CARTHY,

Defendants-Appellants.

_______________________________


Argued Telephonically October 1, 2007 - Decided

Before Judges Lintner, Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law

Division, Bergen County, Docket No. BMA-004-06-06.

Jeffrey B. Steinfeld argued the cause for appellants

(David Hoffman, attorney and on the brief).

Douglas F. Doyle argued the cause for respondent

(Edwards & Caldwell, attorneys; Mr. Doyle, John A. Stone and Charles Lee, on the brief).

PER CURIAM

Defendants Garry and Regina McCarthy, husband and wife, appeal from their respective convictions - his for obstructing vehicular traffic and hers for unreasonable noise - in the Palisades Interstate Parkway Court of the Palisades Interstate Park Commission (PIPC), and again on appeal in the Law Division, after a trial de novo. Defendants were each sentenced to pay a fine of $200 and court costs of $30 for their respective violations of PIPC rules and regulations. For the following reasons, we affirm.

The facts found by the Law Division in its de novo review are as follows:

On February 18, 2005, Officers Thomas Rossi ("Rossi") and Roman Galloza ("Galloza") of the PIP PD were patrolling the Northbound Sunoco, Englewood Cliffs section of the Palisades Parkway ("the Rest Stop"), together in an unmarked police vehicle. At approximately 11:30 p.m., Rossi wrote out a summons for a Saturn that was parked in a handicapped spot without a placard. At the time, no individuals were in the vehicle. Soon after writing the summons, Kyla McCarthy ("Kyla"), the driver of the vehicle, approached and informed Rossi of her identity and that she was, in fact, handicapped but that she did not have the placard with her as she was driving her mother's car. Rossi then informed Kyla that he could not dismiss the summons himself, but that he would recommend to the prosecutor to dismiss the summons if she brought in her placard or documentation of her handicap.

After receiving the summons, Kyla telephoned her father, Garry McCarthy, from her cell phone and indicated to Rossi that her father would like to speak with him. Rossi responded that he would not speak on the phone with her father. Kyla further indicated that her father was the Deputy Commissioner of the New York City Police Department. Rossi still refused to speak to her father and reminded Kyla that she could show documentation to the prosecutor in order to have the summons dismissed. Kyla then entered her vehicle and began to drive in the wrong direction in the designated "one way" area. Rossi then approached Kyla's vehicle and informed her that she must leave the area to which Kyla agreed. As she was driving away, Rossi reported hearing Kyla indicating to her father that the police officers would not let her get gas.

Shortly after Kyla left the Rest Stop, Garry and Regina McCarthy entered the Rest Stop in a black Ford Explorer. After entering the area, the Explorer reversed alongside the officers' vehicle resulting in both vehicles sitting side by side in the exit lane so that cars could not pass. Mr. McCarthy exited the Explorer and approached the passenger side of the officers' vehicle while Mrs. McCarthy remained with the Explorer. A conversation ensued between Mr. McCarthy and the officers regarding Kyla's ticket. During this time Mr. McCarthy's revolver was visible in the middle of his waistband. Mrs. McCarthy was also observed by the officers to have been acting hostile and yelling profanities in the direction of the officers and Mr. McCarthy. Mr. McCarthy became admittedly agitated, and at some point Galloza felt that Mr. McCarthy was in the officer's personal space and detected an odor of alcohol from Mr. McCarthy's breath. Both officers also noted that a small crowd had gathered and that several cars were seen backing up out of the area to get around the blocked exit way. As Mr. McCarthy continued to yell into the passenger side of the officer's vehicle, Galloza then pushed the officers' car door open with his legs and proceeded to place Mr. McCarthy in custody by handcuffing him.

Upon Mr. McCarthy being placed in custody, Rossi called for backup and exited the police vehicle in order to obtain Mr. McCarthy's revolver from his waistband. After putting the revolver in the police vehicle, Mrs. McCarthy exited the Explorer and proceeded to the police vehicle whereupon she attempted to retrieve her husband's revolver. At this time, Rossi restrained Mrs. McCarthy, removed the gun from her possession and placed her in handcuffs as well. Soon after the defendants were placed in custody, backup officers Peralta and Durhim arrived and transported the defendants to the police station.

After arriving at the police station, the defendants were each issued one violation. Mr. McCarthy was cited for obstructing vehicular or pedestrian traffic in violation of PIPC Rules and Regulations Section 408.1(f)(4), and Mrs. McCarthy was cited for unreasonable noise in violation of PIPC Rules and Regulations Section 408.1(f)(8).

After his de novo review, the Law Division judge found Regina McCarthy guilty of unreasonable noise "when she shouted profanities at the officers from her vehicle, and then proceeded to retrieve her husband's gun from the officers' vehicle[,]" and found Garry McCarthy guilty of obstructing traffic when his black SUV reversed and parked "alongside the [police] officers' vehicle . . . ."

This appeal follows in which defendants raise the following issues for our consideration:

I. APPELLANT REGINA MCCARTHY CANNOT BE CONVICTED OF VIOLATING THE PALISADES INTERSTATE PARK COMMISSION REGULATION DEALING WITH THE MAKING OF "UNREASONABLE NOISE."

A) PARK REGULATION 408.1(f)(8) IS VOID FOR VAGUENESS

B) PARK REGULATION 408.1(f)(8) CANNOT BE APPLIED TO SPEECH

II. APPELLANT GARRY MCCARTHY'S CONVICTION

FOR OBSTRUCTION OF VEHICLE OR PEDESTRIAN TRAFFIC MUST BE REVERSED.

III. THE APPELLATE DIVISION MUST MAKE INDEPENDENT DETERMINATIONS AS TO THE CREDIBILITY OF THE WITNESSES AND MUST REVERSE THE APPELLANTS' CONVICTIONS.

We reject these contentions as without merit. R. 2:11-3(e)(2).

The function of the Law Division on an appeal from municipal court is not to search the record for error by the municipal court, not to decide if there was sufficient credible evidence to support the municipal court conviction, but to determine the case completely anew on the record made before the trial judge giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make his or her own independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)). In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division could reasonably have been reached on sufficient credible evidence present in the record. State v. Johnson, supra, 42 N.J. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we might have reached a different conclusion or if the result was a close one. Ibid.; see also State v. Avena, supra, 281 N.J. Super. at 333.

Suffice it to say, we are satisfied that the evidence met that standard. State v. Johnson, supra, 42 N.J. at 162; State v. Slinger, 281 N.J. Super. 538, 543 (App. Div. 1995). Significantly, the corroborating testimonies of defense witnesses Douglas Hansen and Officer Durhim, separate and apart from those of Officers Rossi and Galloza, whose credibility had been questioned by defendants, were sufficient in themselves to sustain the dual findings of guilt. State v. Johnson, supra, 42 N.J. at 166. On this score, Officer Durhim testified that other vehicles could not have safely negotiated around the defendants' vehicle. He also indicated that there were vehicles leaving that area because when they "saw vehicles blocking the way . . . they had to go back out where we were pulling into." Incidentally, the PIPC judge specifically noted in his findings that he had the opportunity to view the rest area himself and that even accepting the defendants' description of the location of their parked vehicle, if the door was open "there would be very little room, if anything, perhaps to fit through that opening of the door of the [McCarthys'] vehicle . . . ." There is also ample proof that the vehicle was parked in that spot under the defendant husband's direction and control. As for the charge against Regina McCarthy, Hansen, an independent, third-party witness, confirmed that she was holding a gun and "definitely yelling." Thus, even if we were to discount Rossi's testimony as urged by defendants, the testimony of Durhim and Hansen, when considered along with that of Officer Galloza, more than meets the "substantial evidence" standard.

We also reject defendants' argument that the PIPC regulation prohibiting "unreasonable noise" is unconstitutionally vague and, as applied, infringes on free speech. It is well-settled that an ordinance is presumed to be valid and the burden is on the party challenging it to establish the contrary. State v. Golin, 363 N.J. Super. 474, 481-82 (App. Div. 2003); State v. Holland, 132 N.J. Super. 17, 23 (App. Div. 1975). Equally clear is that municipalities have the authority to adopt ordinances regulating or preventing loud, disturbing and unnecessary noises which are detrimental to the public health and welfare. N.J.S.A. 40:48-1; Holland, supra, 132 N.J. Super. at 22. Although defendants contend the term "unreasonable" is vague, our duty as a reviewing court is to construe the ordinance as to render it constitutional if it is reasonably susceptible to such a construction. Holland, supra, 132 N.J. Super. at 22. In doing so, we recognize that where the conduct intended to be prohibited by the ordinance is not fairly susceptible of definition in other than general language, there is no constitutional impediment to its use. Ibid. Thus, in Holland, we upheld an ordinance prohibiting "'unnecessary' noise[]," construing the proscription to encompass noises that are "unreasonable in the circumstances," and as thus construed, fairly apprising the public and the defendants of what it proscribed. Id. at 28; see also State v. Powell, 250 N.J. Super. 1, 7 (App. Div. 1991).

We similarly construe the prohibition of PIPC regulation 408.1(f)(8) as extending to noises "unreasonable in the circumstances." The circumstances here include defendant Regina McCarthy grabbing her husband's gun from the police officers' vehicle, holding it, and shouting profanities at the arresting officers involved in a verbal confrontation with her husband, all while a crowd was gathering. We are satisfied that under these circumstances, persons of ordinary intelligence will know such conduct is forbidden and therefore the regulation is not unconstitutionally vague. See Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed.2d 222, 227 (1972); State v. Smith, 46 N.J. 510, 519, cert. denied, 385 U.S. 838, 87 S. Ct. 85, 17 L. Ed.2d 71 (1966); State v. Rogers, 308 N.J. Super. 59, 65 (App. Div.), certif. denied, 156 N.J. 385 (1998).

Nor does it impermissibly infringe on free speech. "[W]hen offensive language is directed specifically to another individual or individuals and is of such a nature and uttered in such circumstances as likely to result in an immediate breach of the peace, the conduct may be considered constitutionally proscribed . . . [and] not protected by the First Amendment." State ex rel W.E.C., 165 N.J. Super. 161, 169 (App. Div.) (citing State v. Brown, 62 N.J. 588, 591 (1973); State v. Rosenfeld, 62 N.J. 594, 603-04 (1973)), rev'd in part, 81 N.J. 442 (1979). As noted, the totality of the circumstances under which the defendant wife shouted profanities at the police officers was likely to escalate the confrontation to a breach of the peace and thus clearly removes her "speech" from constitutional protection.


Affirmed.

(continued)

(continued)

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A-1669-06T5

November 7, 2007