STATE OF NEW JERSEY v. GARY WADE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2184-06T52184-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY WADE,

Defendant-Appellant.

 

Argued January 23, 2008 - Decided

Before Judges Winkelstein, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MA# 06-027.

Thomas J. Goss argued the cause for appellant.

Thomas C. Huth, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gary Wade was a police officer with the Tinton Falls Police Department when he was convicted of obstruction of the administration of law and ordered to forfeit his public employment. On appeal, he raises the following legal arguments:

I. WADE DID NOT OBSTRUCT JUSTICE BY ALLEGEDLY FAILING TO KEEP HIS HANDS ON HIS DASH BOARD OR BY NOT IMMEDIATELY RESPONDING TO COLANER'S QUESTIONS; THEREFORE, HIS CONVICTION MUST BE REVERSED.

II. THE RECORD DOES NOT INDICATE BEYOND A REASONABLE DOUBT THAT WADE "PURPOSELY" OBSTRUCTED THE ADMINISTRATION OF LAW.

III. THE STATE FAILED TO ESTABLISH THAT THERE WAS PROBABLE CAUSE TO STOP WADE; THEREFORE, DEFENDANT'S MOTION TO SUPPRESS SHOULD BE GRANTED.

IV. THE FAILURE OF THE COURT AND THE STATE TO PROVIDE WADE WITH THE DISCOVERY HE REQUESTED, AND THE COURT'S DECISION TO QUASH THE SUBPOENA ISSUED TO COLONEL FUENTES, DENIED THE DEFENDANT A FAIR TRIAL; THEREFORE, HIS CONVICTION MUST BE REVERSED.

V. WADE'S ALLEGED OFFENSE DID NOT "INVOLVE OR TOUCH" HIS DETECTIVE POSITION WITH TINTON FALLS; THEREFORE, WADE IS NOT SUBJECT TO FORFEITURE OR DISQUALIFICATION UNDER N.J.S.A. 2C:51-2.

VI. IN THE EVENT THIS COURT DECIDES THAT WADE COMMITTED AN OFFENSE WHICH IS GRAVE ENOUGH TO MERIT CONSIDERATION OF FORFEITURE AND DISQUALIFICATION, THIS COURT SHOULD STILL DENY THE REQUEST BECAUSE THE STATE HAS FAILED TO PROVE THAT WADE IS NOT QUALIFIED FOR HIS OFFICE.

We have carefully considered these arguments in light of the prevailing law and the record and conclude that they are without merit. We affirm substantially for the reasons expressed by Judge Chaiet.

I

Defendant was charged with obstruction of the administration of law, N.J.S.A. 2C:29-1; resisting arrest, N.J.S.A. 2C:29-2a; and careless driving, N.J.S.A. 39:4-97. He was tried in the Freehold Borough Municipal Court over five days from November 2005 through March 2006. The trial evidence shows the following.

On August 17, 2004, New Jersey State Troopers Michael Colaner and David Ryan were assigned to the Commercial Vehicle Inspection Unit of the State Police. At around 9:00 a.m., they were driving north on the Garden State Parkway, with Colaner in front, driving a marked Dodge Durango, and Ryan following Colaner in a marked Ford Expedition. The troopers were traveling in the far left lane of the Parkway, which at that point was four lanes wide. Colaner testified that as they passed the Monmouth Service Area, he saw a Ford Crown Victoria suddenly pass him on the right. He was traveling at least seventy miles per hour at the time, and the passing vehicle "accelerated at a very high speed and went right by [him]" in the left center lane. Colaner testified that the vehicle contained several roof antennas, with one broken off; and a spotlight on the driver's side. The paint on the vehicle was worn, and the car was dirty. He was unsure if the vehicle was an unmarked police car because of its poor condition.

Colaner "accelerated up adjacent to the driver," attempting to determine if the driver was a police officer or if he was "just dealing with somebody that has just total disregard for a marked state police unit." Traveling ninety miles per hour, Colaner, when parallel with the other driver's window, looked to his right and gestured by putting his palms up in the air, as if to say, "I don't know who you are." Defendant, the driver, gestured in response. Colaner interpreted his response as saying, "what the, and he flung his arms up."

While still traveling "well in excess" of the sixty-five-mile-per-hour speed limit, Colaner pulled behind defendant's car. He activated his overhead lights and turned on his Motor Vehicle Recorder (MVR), as it was standard procedure to record traffic stops. He did not actually turn on the MVR camera for operation at that time, however, because the camera took about twenty-five seconds to activate and begin recording. Colaner testified that during those twenty-five seconds, defendant refused to pull his car over, and continued driving at ninety miles per hour in the left center lane before suddenly veering the car to the right, without signaling, and coming to an abrupt stop on the right shoulder.

When Colaner and defendant were on the right shoulder, Ryan pulled up behind them. Ryan had been unable to keep up with Colaner because his vehicle could not travel more than eighty miles per hour. When Ryan arrived, defendant's vehicle had its "wig wags" (strobe lights) flashing; Ryan believed it was an unmarked police car.

Colaner testified that defendant activated his rear strobe lights when he stopped the car. As Colaner approached defendant's car, he was unsure if it was a police vehicle. He testified that "it didn't appear that a police officer was in control of [the] vehicle." He had previously seen strobe lights on other vehicles, such as those driven by building inspectors, fire fighters, "emergency management type people" and "first aiders." He had also stopped similar vehicles that were driven by bounty hunters and "look-alike police."

When Colaner approached the driver's side of defendant's car, he saw that defendant was not in a police uniform, but was wearing a blue knit shirt with embroidery, partially obscured by the shoulder strap of the seatbelt, with the word detective on the shirt. On direct examination, while referring to his report of the incident, Colaner testified to his interaction with defendant as follows:

Q Okay. And as a result of walking up, what was the first thing that you said?

A State Police and I attempted to ask for [defendant's] license, registration and insurance.

Q . . . When you say you attempted, how far did you get those requests out?

. . . .

A . . . I stated State Police. At which point I was interrupted by the driver.

Q When you say you were interrupted by the driver, what was it that the driver said?

A He was adversarial . . . . He said, "I want to know the reason you stopped me."

Q And did he say anything else, before you responded?

A . . . [H]e said the same thing again. "I want to know the reason you stopped me."

Q Did you respond to that?

A At that point I'm trying to get control and again, State Police, may I see your license, registration and insurance.

Q And you were able to, at this second attempt, to get all that out?

A I don't believe so. No, again, he interrupted me. I got as far as license, at which time he responded, "I want your supervisor out here."

Q He wanted your supervisor?

A Wanted [my] supervisor.

Q And what was your response to that?

A . . . He further stated, you pulled me over in my town. I responded with, may I see your and he interrupted me again . . . I tried one more time and said, may I see your and that's as far as I got, when he said, "You pulled me over in my town. I want your supervisor out here right now."

Q . . . Now, how many times did you ask him for his credentials, either fully or in an interrupted fashion?

A . . . It was five times before he started moving around the vehicle.

Q Okay. When you say moving around the vehicle, could you tell us specifically what he was doing?

A He starts reaching into the center area and grabbed his radio that was in the center console there. . . .

. . . .

Q What about on the front seat?

A The front seat I believe there was a laptop and a briefcase.

. . . .

Q You've got a laptop on the front seat. At this particular point don't you think that you've got a police officer here?

A His actions are telling me no.

Q What do you mean by that?

A . . . I've been stopping police officers a long time on the Garden State Parkway, they got their ID out, sorry, Troop, just going to work, I'm on the job, you know, they're not sitting there cutting me off, trying to gain control of the stop. His actions are contrary to everything the vehicle is telling me.

Q Because the vehicle itself is telling you what?

A This is probably a police car.

Q . . . But the actions are telling you?

A This is not a police officer.

. . . .

Q Now, you indicated that you either attempted or asked him a total of five times for credentials, correct?

A Up to this point where he started moving around the vehicle.

Q When he started moving around the vehicle, what did you then do?

A I'm trying to watch his hands.

Q Why?

A Hands will kill you. They're reaching for something in an area that isn't conducive with securing his license, his registration or insurance. . . . He is reaching in between the seats.

Q Well, isn't he reaching for the radio?

A That's what he did grab.

Q Did he ever reach for any other location besides the radio in that center area?

A His hands are moving all around the interior there and I'm concerned about his wingspan, where his hands are going.

. . . .

Q Now, after this stage of the situation, could you tell us what you say to him next?

A Well, he reaches to the center and grabs his radio. He makes a request for a supervisor over his radio.

. . . .

A At this point is when I asked Mr. Wade if he was carrying a weapon.

Q Why did you ask him that?

A I'm not getting any license, registration or insurance from him. The vehicle is telling me it's possibly a police car. He is not acting, conducting himself like a police officer. At that point I want to know, do I have a police officer, do I have a police officer who is having some sort of problem going on here, or do I have somebody else that's armed and shouldn't be.

Q Once you asked him, the initial time you asked him for a weapon, if he is carrying a weapon, did he respond?

A No, he didn't.

Q And how many times did you ask him whether or not he had a weapon?

A . . . But I asked six times if he had a weapon, without a response.

. . . .

Q Okay. Does he say anything, other than responding to you on your request as to whether or not he has a weapon?

A He said, I want your supervisor.

. . . .

Q Now, after you've asked him whether or not he has a weapon, does he at any point acknowledge to you whether or not he has a weapon?

A He does acknowledge he has a weapon.

Q . . . Do you ask him where the weapon is?

A Yes, I do.

Q And does he respond?

A I don't believe initially. But he did indicate that it was on his ankle, where it belongs.

Q . . . And at this particular point do you ask him to retrieve the weapon for you?

A No.

Q Why not?

A I'm not putting a weapon in this gentleman's hands.

Q Do you instruct him as to what he should do with his hands?

A Yes, I do.

Q And what do you instruct him to do?

A I wanted his hands up on the dash.

Q How come?

A I want those hands where they're not moving and they're in my sight and Ryan's sight.

Q And does he comply with that?

A No, he doesn't.

Q What does he do?

A He continues to act in an agitated state and at which time, if I can refer to my report, he finally says, "I am a police officer." And I tell him, if he is a police officer, start cooperating. I ask the ninth time, where is you're weapon. He finally responded, "It's on my ankle where it should be."

Colaner had drawn his handgun "to try to get control of the situation." With Ryan on the passenger side of the car, he opened the driver's door and attempted to reach in and get the weapon with his left hand. Defendant "[told him] straight out, do not touch my weapon." Defendant leaned away from him, withdrawing his leg, and pushed his arm away.

Defendant indicated that his identification was in the back seat of the car, in a gym bag, after Colaner had asked him for it "several times." When Colaner was questioned as to why he did not allow defendant to reach into the gym bag to obtain his identification, Colaner responded:

A He hasn't done one thing I've asked so far and he has been trying to command the stop since I encountered him. So coupled with his actions, his total disregard for any request that I have given him, there is no way that I am going to let him stick his hands in an unknown gym bag, after he has already acknowledged he does have at least one weapon.

Q And where is it that you are telling him to place his hands?

A Up on the dash.

Q And again, does he comply?

A Never.

While defendant was still in the car, Colaner was able to place a handcuff on his left wrist. After Ryan released defendant's seatbelt, Colaner forcibly removed defendant from the car. Outside the car, when Colaner twice ordered defendant to a prone position, defendant refused. Colaner and Ryan then forced defendant on the ground "with a little bit of struggle." At that point, Colaner gave defendant "a shot of the OC spray right behind his right ear." Both troopers testified that while defendant was on the ground, they struggled "to pull his right arm out from underneath his body" to place the handcuff on his right arm. Once defendant was handcuffed, they removed his weapon and his identification from the gym bag. Defendant's supervisor subsequently arrived at the incident scene.

Trooper Ryan substantially confirmed Trooper Colaner's testimony. He was following Colaner in the northbound far left lane of the Garden State Parkway when the Crown Victoria "just blew by [him] on [his] right side." Like Colaner, Ryan was concerned that the driver of the vehicle was not a police officer because he had never seen a police officer act the way defendant did after he was stopped. Ryan testified that from his vantage point on the passenger side of the vehicle, he saw defendant lean away from Colaner; defendant tried to "get away" when Colaner tried to handcuff him. Ryan testified that defendant refused to go to the ground when ordered to do so, and he was required to use force to place defendant's right arm behind his back.

Defendant testified as follows. After passing through a toll plaza, he followed the State Police vehicles for "a mile or two," when those vehicles slowed to around 55 to 60 miles per hour. Because defendant assumed that they reduced their speed in order to "take a turnaround," he pulled into the lane to their right, traveling at 60 to 65 miles an hour, and passed them. As he was passing them, Colaner, who appeared agitated, sped up and started pointing at him, and then pulled him over.

After defendant came to a stop, he put his hands on the steering wheel. When Colaner approached and stated "New Jersey State Police[,]" defendant asked him why he had been pulled over. Colaner failed to respond, again stating, "New Jersey State Police." Defendant again asked why he had been pulled over, and again Colaner did not respond. At that point, defendant thought that Colaner did not have a valid reason for stopping him, so he requested a supervisor. He then radioed Monmouth County dispatch for his own supervisor.

While defendant was on the radio, Colaner drew his handgun. When defendant saw the weapon, he immediately placed his hands on the steering wheel. At that point, Colaner asked defendant whether he was a police officer. He responded affirmatively, and showed Colaner his shirt and the badge on his belt. Colaner then asked him if he had identification, and he replied that it was in his book-bag in the back seat. Colaner asked him if he had a weapon and where it was located. Defendant replied that it was on his ankle.

Colaner opened defendant's door and attempted to seize his handgun. Defendant kept his hands on the steering wheel, pulled away, and said: "[P]lease do not touch my weapon[.]" Colaner handcuffed defendant's left wrist and ordered him out of the car. He got out after his seatbelt was unbuckled.

Once defendant got out, Colaner took out his pepper spray and ordered him to the ground. Defendant placed both of his hands behind his back but refused to get on the ground. Colaner then punched him in the back of the head, and as he was falling to the ground, Ryan held him to prevent the fall. When defendant was on the ground, Ryan instructed him to place his hands behind his back. Defendant complied and was handcuffed.

The MVR on Trooper Colaner's vehicle videotaped the incident. Because the sound quality was weak, the State sent the videotape to the FBI laboratories for audio enhancement. On the enhanced video, it was still difficult to understand what the parties were saying. Both the State and defendant prepared transcripts from the videotape. The trial judge reviewed the videotape and the transcripts provided by both parties, as have we.

According to the videotape, approximately three minutes elapsed from when Colaner approached defendant's car to when defendant was handcuffed. The transcriptions of the videotape were substantially the same, with few discrepancies. For example, each transcript reflected that defendant used the language "in my own town" one time. The State's transcription showed that the troopers asked defendant for his driver's license, registration and insurance card twice; whether he had a weapon nine times; and to keep his hands on the dash twice. Defendant's transcription reflects that the troopers asked him for his driver's license, registration and insurance card twice, and defendant interrupted that question once; they asked him where his weapon was seven times, with two additional inaudible questions; and they told him to keep his hands on the dash three times.

Prior to trial, defendant made a number of discovery requests. He requested the personnel files of Troopers Colaner and Ryan; documents from any law enforcement agency related to any internal investigation of defendant's arrest; a copy of the enhanced videotape; the manufacturer's instructions for the MVRs located in Colaner's and Ryan's vehicles; and transcriptions of any calls made by the arresting troopers immediately before and after defendant's arrest. Defendant subpoenaed Colonel Rick Fuentes, the Superintendent of the New Jersey State Police. Defendant also later claimed he was entitled to a mistrial, asserting that when Troopers Colaner and Ryan reviewed the videotape to have a transcript prepared, they violated the court's sequestration order.

The municipal court judge found no violation of the sequestration order; he quashed the subpoena of Colonel Fuentes; and he ordered the State to deliver the manufacturer's instructions for the MVR, if it could locate them, but the State indicated it was unable to locate them, so they were never produced. The judge also denied defendant the right to review the personnel files of Troopers Colaner and Ryan. Finally, there was no evidence to show that any law enforcement agency undertook an internal investigation of defendant's arrest.

The municipal court judge acquitted defendant of resisting arrest, but convicted him of obstruction of the administration of law and careless driving. The court imposed fines, costs and other charges. The judge subsequently denied the State's motion to have defendant forfeit his position as a police officer and forfeit his right to hold public office in the future.

In arriving at his findings as to the substantive charges, the municipal court judge found that the troopers had probable cause to stop defendant's vehicle. "Based on credibility," the court found that defendant exceeded the speed limit and failed to signal when he changed lanes, which constituted careless driving, and gave the troopers legal grounds to stop defendant's car. The court further found that the troopers acted reasonably in their questioning of defendant and that after being asked a number of times for his credentials, defendant purposely refused to comply with the requests. The court substantially accepted the testimony of the state troopers and rejected that of defendant.

Defendant appealed his convictions to the Law Division, and the State cross-appealed the denial of its forfeiture motion. Following a de novo review, the Law Division judge, Judge Chaiet, convicted defendant of obstruction of the administration of law and careless driving. The court also concluded that defendant's conduct required forfeiture of his position as a police officer and precluded him from holding public employment in the future.

The court found that Troopers Colaner's and Ryan's descriptions of the car chase were "more reasonable and believable" than defendant's, and because of defendant's careless driving, the troopers had a valid reason to stop his car. The court concluded that defendant's refusal to put his hands on the dashboard and keep them there was a physical interference with the administration of the officers' duties, and that defendant purposely acted to obstruct the officers from performing their duties by refusing to give his driver's license information, refusing to reveal if he was armed, and refusing to get in a prone position when ordered to do so after being removed from the car. It found that defendant's actions created an obstacle to the state troopers' performance of their official functions.

The court found significant that Colaner asked defendant to keep his hands on the dashboard "at least three times," and defendant did not comply, moving his hands about the car. The court also found that Colaner's testimony was truthful when he said that defendant pushed his arm away as he attempted to obtain the weapon from defendant's ankle holster. The court said:

Colaner made a lawful stop of a careless driver. Colaner had concerns whether Wade was an officer or not. And Wade's arrogance prevented Colaner from performing his duties relevant to the traffic stop, and created a potentially dangerous situation on a busy highway. Accepting in the main that credibility of Colaner and Ryan as supported by their testimony and the video and rejecting Wade's portrayal of himself as the victim, this Court is satisfied that the State has proven all of the elements of N.J.S.A. 2C:29-1 beyond a reasonable doubt.

The court imposed a $150 fine, court costs, and appropriate penalties. It stayed enforcement of the fines and penalties pending appeal.

Judge Chaiet, contrary to the conclusion of the municipal court judge, found that defendant's actions satisfied the requirements of N.J.S.A. 2C:51-2, requiring forfeiture of his position as a police officer and forfeiture of his ability to hold public office in the future. The court reasoned that although defendant was convicted of a disorderly persons offense:

This offense is serious in the context that the defendant was a police officer who created a situation where two other officers were impeded in an attempt to perform a routine requirement of their job. By purposely refusing to cooperate with the State Police, defendant created a potentially dangerous situation on a busy state highway. Defendant was speeding and engaging in careless driving, and when pulled over, adopted an attitude that the troopers had no business trying to subject him to the laws that apply to all citizens, and that the defendant himself was obligated to enforce. Thus, although not a crime, this offense was serious in the context of defendant's interaction with the State Police Troopers in assessing the qualification required of an employee's public employment.

. . . [P]olice officers are sworn to uphold the law, to observe, to be vigilant for, and to apprehend offenders, to investigate alleged violations of the law, and like responsibilities and duties. They are permitted to carry firearms, to make arrests, and to issue lawful orders to citizens in the course of their duties. Obviously, the qualifications required to hold such a position require a high level of honesty, integrity, sensitivity and fairness in dealing with members of the public, knowledge of the law, and a pattern and exhibition of law-abiding conduct. State v. Gismondi[,] 353 [N.J. Super.] 178, 185 (App. Div. 2002) . . . .

Wade was driving in his police car on the way to work. He was wearing a "detective" shirt and was armed with a weapon. When stopped by the troopers, he engaged in the conduct that has been previously discussed in this opinion. Instead of being cooperative, he displayed not only bad judgment, but abused his authority by the attitude that you cannot stop me in, quote, "my town." . . .

Instead of responding to legitimate questions as he was obligated to do so, he was using his police officer radio to communicate with his supervisor. Defendant in essence was using his position as a police officer to defeat the efforts of other law enforcement officers. His overall conduct was a direct relationship to his job as a police officer, and reflected poorly on his ability to carry out the responsibilities of police work.

II

We begin our discussion with defendant's challenge to Colaner's stop of his vehicle. He asserts that because the stop was invalid, his conviction must be reversed. Defendant's argument is without merit for two reasons. First, "[a] person has no constitutional right to use an improper stop as justification to commit the new and distinctive offense of resisting arrest, eluding, escape, or obstruction." State v. Crawley, 187 N.J. 440, 459, cert. denied, ___ U.S. ___, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). Thus, regardless of the validity of the stop, his obstruction conviction would stand.

That said, we conclude that the stop was indeed lawful. A law enforcement officer may lawfully stop a motor vehicle if the officer has a "reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (2002). Here, that standard was satisfied. The Law Division judge found that Trooper Colaner's testimony as to why he stopped defendant's vehicle was credible. The trooper testified that defendant was traveling up to ninety miles per hour in a sixty-five-mile-per-hour zone, and made an abrupt lane change without signaling. Those facts are sufficient to constitute the reasonable and articulable suspicion that a traffic offense or offenses had been committed. Defendant's arguments to the contrary are without merit, not warranting additional discussion. R. 2:11-3(e)(2).

III

We next turn to whether the evidence supported the conviction for obstructing the administration of law. The statute, N.J.S.A. 2C:29-1a, provides:

A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act. This section does not apply to failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

"The purpose of this statute is 'to prohibit a broad range of behavior designed to impede or defeat the lawful operation of government.'" State v. Camillo, 382 N.J. Super. 113, 116-17 (App. Div. 2005) (quoting Final Report of the New Jersey Criminal Law Revision Commission, Vol. II, 1971, at 280). Nevertheless, "[s]imply obstructing, impairing or perverting the administration of law or the governmental function is no longer a statutory violation; the obstruction must be carried out in a manner described in the statute: 'by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.'" Id. at 118 (quoting N.J.S.A. 2C:29-1).

Here, the court's findings that these criteria have been met are supported by substantial evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964). The judge believed the testimony of the troopers, rather than defendant's testimony, as to how the incident occurred. On appeal, we owe special deference to the trial judge's credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999).

Judge Chaiet found that defendant physically interfered with Trooper Colaner's functions by failing to keep his hands on the dash as instructed. The judge found that Colaner asked defendant to keep his hands on the dashboard, "[b]ut Wade was not complying. . . . Colaner asked at least three times for Wade to keep his hands on the dash, but both Ryan and Colaner indicated [Wade's] hands were moving about the car." Defendant physically attempted to prevent Trooper Ryan from placing his right arm behind his back to handcuff him, and he "lean[ed] away" from Trooper Colaner, and pushed his hand away, when the trooper attempted to remove the weapon from defendant's ankle holster while he was still in the car. Defendant's conduct satisfies the physical interference requirement of the obstruction statute. See State v. Hernandez, 338 N.J. Super. 317, 323-24 (App. Div. 2001) (refusal to follow police officer's instructions to physically leave the area constituted physical act and satisfied criteria for conviction of obstruction of justice); State v. Wanczyk, 201 N.J. Super. 258, 262-63 (App. Div. 1985) (defendant's verbal and physical abuse of police officers in resisting their efforts to complete pat-down search constituted criminal obstruction).

Defendant asserts that the entire incident was exceedingly brief, having taken place in a manner of seconds, and he ultimately did comply with the officers' requests by telling the officers where his credentials were and that he was a police officer wearing a weapon in his ankle holster. We reject defendant's argument that the brevity of the incident somehow justifies his actions during that time period. Between the time Trooper Colaner first approached defendant until the time he was placed in handcuffs, he repeatedly refused to respond to the trooper's requests to keep his hands on the dash; he refused to provide his credentials; he interrupted the trooper, and demanded that the trooper contact a supervisor; and he refused to respond to multiple inquiries as to the existence and location of his weapon. He told the trooper not to touch his weapon, and he physically moved his body in such a manner that the trooper could not reach the weapon when he attempted to do so while defendant was still in his car. Once out of the car, defendant refused to comply with the trooper's request that he lie on the ground. That all of defendant's actions occurred in a brief period of time does not negate his actions, many of which constituted physical interference with the troopers' ability to carry out their functions.

Defendant also claims that the record does not support a conclusion that he purposely obstructed the administration of law. That argument too is without merit. An individual's purpose may be inferred from the surrounding circumstances. State v. Kamienski, 254 N.J. Super. 75, 92 (App. Div.), certif. denied, 130 N.J. 18 (1992). A reasonable inference to be drawn from defendant's conduct is that it was his conscious object to interfere with the troopers' ability to enforce the motor vehicle laws. As Judge Chaiet said, "Wade's actions actually created an obstacle to Colaner [in] performing his official functions as a law enforcement officer." The record fully supports the court's conclusion that defendant violated N.J.S.A. 2C:29-1a by physically interfering with the troopers' performance of their governmental functions.

IV

We next turn to defendant's argument that he is entitled to a new trial as a result of the municipal court judge's failure to grant his discovery requests and his motions for a mistrial. First, we address his claim that he is entitled to a new trial because he was never provided with the enhanced videotape. The audio portion of the videotape taken from Colaner's vehicle was generally indiscernible, so the State sent the tape to an FBI lab for audio enhancement. Defendant requested a copy of the enhanced version; however, the State did not have the special equipment necessary to copy that version, so it could not duplicate the enhanced tape. Instead, the State made the enhanced tape available to defendant, who had possession of it for a month to review it and prepare a transcript. Under these circumstances, we agree with the trial judge that the State's failure to provide defendant with his own copy of the enhanced tape does not entitle defendant to a new trial.

Rule 7:7-7(b)(6) states, in part:

In all cases involving a consequence of magnitude or when ordered by the court, the defendant . . . shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant[] . . . originals or copies of papers and documents . . . that are within the possession, custody or control of the government[.]

Pursuant to this rule, defendant was allowed an opportunity to inspect the videotape. By making the videotape available, the State complied with the rule. Not having his own copy of the enhanced videotape was not unduly prejudicial to defendant.

We next turn to defendant's request to review the personnel files of Troopers Colaner and Ryan. We agree with the court that he was not entitled to review those files. Although the confidentiality of police records is not absolute, a defendant must provide "at least some showing to justify a breach of confidentiality[.]" State v. Jones, 308 N.J. Super. 15, 44 (App. Div. 1998). Courts will not review every police file in every criminal case. Ibid. "[T]he party seeking an in camera inspection must advance 'some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw.'" State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1998) (quoting State v. Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980)). Defendant here has failed to make any showing that the troopers' files contained any information material to the charges against him. He suggests that the files may contain information that would aid his cross-examination of the troopers; but, he has not presented any facts to corroborate those suggestions. His motion was properly rejected.

Next, we address defendant's claim that the municipal court erred by quashing his subpoena of Colonel Fuentes. That argument too is without merit. Rule 1:9-2 allows a court to quash a subpoena if "compliance would be unreasonable or oppressive[.]" The right to depose a high-level government official requires a showing that the official has "first-hand knowledge or direct involvement in the events giving rise to an action, or . . . a showing that such deposition is essential to prevent injustice." Hyland v. Smollok, 137 N.J. Super. 456, 460 (App. Div. 1975), certif. denied, 71 N.J. 328 (1976); see also State v. Mitchell, 164 N.J. Super. 198, 201 (App. Div. 1978). "[T]here must be, at the very least, a solid showing of the need for and relevance of the predicted testimony." In re Coruzzi, 98 N.J. 77, 81 (1984).

Defendant has failed to establish that Colonel Fuentes had first-hand knowledge of the events in question. He argues that Colaner testified that Colonel Fuentes had viewed the videotape of the incident; therefore, if Fuentes testified that he had not viewed the videotape, it would be evidence that Colaner perjured himself. Colaner did not, however, testify to having personal knowledge of whether Fuentes viewed the videotape. During cross-examination, Colaner testified as follows:

Q . . . Col. Fuentes actually reviewed this videotape himself?

A I understand that he did, yes, sir.

Q Okay. Did you go back and find out whether or not for sure he reviewed the tape?

A No, sir.

Q As a matter of fact I think you told me twice the last time we were here that he reviewed the tape. Is that right?

A It's been represented to me that he reviewed the tape.

The record reflects that Colaner did not have personal knowledge regarding Colonel Fuentes's alleged viewing of the videotape. Consequently, if Colonel Fuentes had testified that he had not viewed the videotape, it would only have demonstrated that the individual who conveyed the information to Colaner was incorrect, not that Colaner was not credible.

Defendant's remaining arguments as to why he should have been entitled to call Colonel Fuentes as a witness are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Next, defendant claims that the State's failure to produce a manufacturer's manual for the videotape equipment in Colaner's vehicle entitles him to a new trial. We disagree. Rule 7:7-7(b)(6) requires the State to produce documents that "are within the possession, custody or control of the government[.]" The prosecutor proffered that the police department did not have a copy of the operator's manual, and the court accepted that proffer. Thus, the State did not have the ability to produce the manual.

Defendant claims that Troopers Colaner and Ryan disobeyed the municipal court's sequestration order when they viewed and transcribed the videotape together. Again, we disagree.

"[T]he reason for sequestration is to prevent prospective witnesses from hearing what the other witnesses detail in their evidence, 'for the less a witness hears of another's testimony the more likely is he to declare his own knowledge simply and unbiased.'" State v. Miller, 299 N.J. Super. 387, 399 (App. Div.) (quoting State v. DiModica, 40 N.J. 404, 413 (1963)), certif. denied, 151 N.J. 464 (1997). Here, the record contains no evidence that the troopers discussed their proposed testimony while viewing the videotape. Defendant has not shown that the troopers viewing the videotape together was clearly capable of producing an unjust result. R. 2:10-2.

V

Finally, we turn to defendant's challenge to the Law Division judge's conclusion that defendant's actions subjected him to forfeiture of his position as a police officer and disqualified him from holding public office in the future.

At the time of the incident, N.J.S.A. 2C:51-2a(1), (2) stated the following:

A person holding any public office, position, or employment . . . under the government of this State . . . who is convicted of an offense shall forfeit such office or position if:

(1) He is convicted . . . of an offense involving dishonesty or of a crime of the third degree or above . . . ; [or]

(2) He is convicted of an offense involving or touching such office, position or employment[.] . . .

The standard for future disqualification from public office is:

(d) In addition to the punishment prescribed for the offense, and the forfeiture set forth in subsection a. of N.J.S.A. 2C:51-2, any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.

[N.J.S.A. 2C:51-2d.]

Because defendant was not convicted of an offense involving dishonesty or a crime of the third degree or higher, N.J.S.A. 2C:51-2a(1), the issue is whether the offense involves or touches defendant's employment. N.J.S.A. 2C:51-2a(2).

The inquiry into whether an offense involves and touches on employment to the extent of meriting forfeiture requires careful examination of the facts and the evaluation of various factors in the 'involve and touch' analysis. First, there is a need to assess the gravity of the crime as revealed by its nature, its context, and the identity of the victim. Second, there is a need to assess the qualifications required of the employee's public employment.

[Moore v. Youth Corr. Inst. at Annandale, 119 N.J. 256, 269 (1990)].

As Judge Skillman, speaking for the court in State v. Ercolano, 335 N.J. Super. 236, 243 (App. Div. 2000), certif. denied, 167 N.J. 635 (2001), explained,

N.J.S.A. 2C:51-2(a) mandates forfeiture of the public employment of a defendant who is convicted of any one of three categories of offenses: (1) "an offense involving dishonesty," N.J.S.A. 2C:51-2(a)(1); (2) "a crime of the third degree or above," ibid.; or (3) "an offense involving or touching such office, position or employment." N.J.S.A. 2C:51-2(a)(2). A trial court's sole responsibility is to determine whether an offense falls within any one of these three categories. If it does, the court must order the forfeiture mandated by N.J.S.A. 2C:51-2(a).

See also State v. Pavlik, 363 N.J. Super. 307, 311 (App. Div. 2003) ("N.J.S.A. 2C:51-2a(2) forfeiture requires a finding of a nexus between the defendant's conduct and his position or employment.").

Here, defendant's verbal responses to the state troopers' questions and instructions and his physical conduct provided that nexus. Rather than complying with Trooper Colaner's requests for his credentials, defendant interrupted him and chastised him for pulling him over "in [his] town." Defendant was on his way to work, driving an unmarked police vehicle, wearing a sweater indicating that he was a detective, and carrying his police-issued weapon, which he refused to allow the state troopers to touch. He used his police radio to call his supervisor, and demanded that Colaner call his supervisor to the scene. The most reasonable inference from these actions is that defendant was using his status as a police officer, and the trappings of his position, to impede the troopers from enforcing the traffic laws. As the Law Division judge stated:

Instead of responding to legitimate questions as he was obligated to do . . . , [defendant] was using his police officer radio to communicate with his supervisor. Defendant in essence was using his position as a police officer to defeat the efforts of other law enforcement officers. His overall conduct [had] a direct relationship to his job as a police officer, and reflected poorly on his ability to carry out the responsibilities of police work.

We agree with the judge that the "involve and touch" analysis has been amply satisfied here. See State v. Rodriguez, 383 N.J. Super. 663, 667-69 (App. Div. 2006) (defendant police officer's behavior in leaving the scene of a fatal accident "sufficiently involved and touched upon his position" as a police officer that disqualification from public office was appropriate). The facts underlying defendant's conviction bear a direct nexus to his office. McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001). As Judge Chaiet indicated, instead of cooperating, defendant displayed bad judgment and abused his authority, telling the state troopers that they could not stop him in "[his] town." We agree with the court's conclusion that defendant's "overall conduct" bore a "direct relationship to his job as a police officer, and reflected poorly on his ability to carry out the responsibilities of police work."

Affirmed. We vacate the stay of enforcement of the fines and penalties imposed by the Law Division.

 

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A-2184-06T5

February 29, 2008