STATE OF NEW JERSEY v. ANGELA METLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4068-06T44068-06T4

A-4069-06T4

A-4070-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGELA METLER,

Defendant-Appellant.

__________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT KAZEMIAN,

Defendant-Appellant.

__________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JANET PISZAR,

Defendant-Appellant.

________________________________________________________________

 
Submitted June 2, 2008 - Decided

Before Judges Parrillo, S.L. Reisner and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal Nos. 40-09-06, 42-09-06 and 43-09-06.

Gina A. Calogero, attorney for appellants.

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Robin M. Lawrie, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendants Angela Metler, Albert Kazemian and Janet Piszar were convicted in the municipal court of Vernon Township of various disorderly persons offenses related to their attempts to interfere with a bear hunt at the Waywayanda State Park (Park). In an appeal de novo to the Law Division, their convictions were affirmed on August 31, 2006, and it is from those orders that defendants appeal.

In particular, all three defendants were convicted of hindering or preventing the lawful taking of wildlife, a petty disorderly persons offense, N.J.S.A. 23:7A-2, and disorderly conduct by purposely causing or creating a risk of public inconvenience or annoyance, a disorderly persons offense, N.J.S.A. 2C:33-2(a). In addition, Metler and Kazemian were also found guilty of obstruction of justice by purposely preventing or attempting to prevent a public servant from performing his or her duty, a disorderly persons offense, N.J.S.A. 2C:29-1(a). Finally, Kazemian was also convicted of resisting arrest, a disorderly persons offense, N.J.S.A. 2C:29-2(a).

The Law Division found defendants guilty of the same offenses of which they were convicted in the municipal court; however, the Law Division modified the sentences by merging the convictions for disorderly conduct with the convictions for interfering with hunting. As to Kazemian, the judge merged the conviction for obstructing an officer with the conviction for resisting arrest. With respect to Piszar, the court merged her conviction for disorderly conduct with her conviction for interfering with hunting. Appropriate fines and penalties were imposed against all three defendants. Because these convictions represent defendant Metler's fourth conviction for hunting-related offenses, the Law Division also imposed a sentence of forty-eight hours in the county jail and eight days in the Sheriff's Labor Assistance Program. The custodial portion of Metler's sentence has been stayed pending appeal. We affirm.

I.

On December 7, 2005, Officer Walter Sanford of the New Jersey State Park Police was dispatched to the Park to investigate complaints of hunter harassment during a State-authorized black bear hunt. Sanford was working under cover wearing camouflage clothing and sporting a hunting license and a shotgun. When Sanford entered the woods, he came upon two hunters whom he did not know, John White and William Devine; Devine was White's father-in-law. Sanford accompanied Devine and White in order to appear inconspicuous to anyone intending to disrupt the hunt.

At a point about 500 feet along the trail from the parking lot, Sanford, Devine and White encountered a group of "five or six persons" later identified as including the three defendants, Fritzges and another woman. All five were, according to Sanford, just "milling about" approximately 200 feet ahead of them. The five headed toward the hunters and when they got within "normal talking distance" began to "walk[] around us, haphazardly." When Devine or White asked defendants and the others what they were doing, they responded that they were bird watching.

As Sanford, Devine and White continued along the trail, defendants and the other two women began following them, eventually forming a sort of "horseshoe type formation" at the hunters' sides and in their rear. Members of the group maintained a distance of about ten to twenty feet, and while they did not talk, they "were making a lot of noise," "just general hooting type things, annoying things, yelling to one another, oh, look, look at this, look at this."

According to Sanford, this behavior continued for between five and ten minutes, with the hunters, Sanford and defendants walking down the trail. He described what happened next: "They blatantly started to show their -- their true intentions, such as saying you hunter killers. You're -- you shouldn't be here. You're killing our bears. You shouldn't be hunters. They hope that we die. All kinds of condescending things. Interfering in the hunt." Sanford "suggested to Devine and White that they move off into another direction." They did so, but to no avail. Defendants continued to follow them.

According to Sanford, all the people in defendants' group were still "saying things," at points "out of control yelling, [a]lmost lunatic yelling." In fact, Metler "was screaming at the top of her lungs. It was kind of eerie. It was just ridiculous." Piszar was doing "loud boisterous things," saying "[g]o away, don't kill our bears." Metler, in particular, used "irrational screaming and foul language" and asked the hunters "how would you like this done to you." All three defendants "yell[ed] and scream[ed]" and uttered "anti-bear hunt protest[s]." Sanford testified that "wildlife doesn't like loud noises," and that the "hooting and the yelling" would clearly interfere with bear hunting. He commented, "bears do not want to be around humans, if they can help it."

Sanford, who had a camera, began taking photos of the two hunters and the group members at different times as the incident continued. Metler, meanwhile, videotaped some of the events as well. Sanford and the other two hunters asked the group to leave them alone, but without success. They would "basically surround you and just followed you wherever you went" until "you were encased almost," and prevented from hunting. Sanford made another suggestion to change direction, and Devine and White agreed. Again defendants followed, continuing the same behavior.

Sanford observed Devine and White "starting to get a little . . . stressed there. And . . . it started to get progressively worse." For example, at one point Kazemian "became vocal," meaning he was "[t]elling you how he felt. You're killers, such for -- things like that." Sanford "tried to rationalize with them . . . to make peace almost, I begged them to leave us alone, for their sake." Sanford expressed that there were "people fighting overseas, you know, dying for this," and that the group could "voice your opinion in . . . a normal manner . . . and you can also hunt in a normal fashion, that's what's great about the United States." Despite Sanford's urgings to leave the three of them alone, defendants and the other two women persisted.

Kazemian then began "asking questions" such as where the hunters lived. At that moment, Sanford observed Devine and White were "becoming shaken up." Kazemian also "stated he should get his . . . friends to come hunt us down," and "started getting into the [sic] how would you like to be hunted." When Devine or White asked if such people would "come hurt our families," Kazemian "shrugged his shoulders and lifted his eyebrows" intimating, according to Sanford, an affirmative response.

Shortly after Kazemian made "the remark about having his friends hunt down the hunters," Sanford decided to identify himself. As Kazemian "stood against a tree," Sanford took off his hunting garb, revealing his uniform, which included a State Park Service patch on the shirt, badge, name tag, gun belt and sidearm. At that point, Kazemian was slightly above Sanford on a ledge. When Sanford told Kazemian he was under arrest, Sanford attempted "to take his hand to escort him down." Kazemian flung Sanford's hand away, knocking Sanford off balance. Sanford repeated his instruction that Kazemian was to come down from the ledge and put his hands behind his back because he was under arrest. Kazemian responded that Sanford was "nothing but a God damn . . . [f]--king ranger." He also told Sanford that "if you touch me one more time we're going to have a big problem."

Meanwhile, the women in the group "all took off" as soon as Sanford identified himself, despite his instruction to the group not to move and that they were under arrest. Sanford testified he made his directive "to everyone" and "it was made quite clear." Specifically, Metler was perhaps fifty to 100 feet from Sanford, and Piszar and Fritzges were approximately forty to fifty feet away, all facing Sanford when Sanford told "everyone to stop, you're under arrest" in a "loud, very loud tone." Metler, Piszar, Fritzges and the unidentified woman "fanned out" and were "disbursing [sic]." The two other hunters "were not doing anything basically but standing there with their jaws open."

Kazemian, who did not flee, replied to Sanford that "if you handcuff me, I will fall, split my head open and sue the State," at which time Sanford considered using pepper spray against him. Sanford became alarmed that "it was going to get out of control at that point." Consequently, he called on his police radio for backup, describing the number in the group that was fleeing and the direction they were headed. Three or four additional State Park Police officers quickly arrived. As soon as they did so, Kazemian "decided to comply." Sanford determined he would not handcuff Kazemian because Kazemian "decided to walk along with [him] in a civil manner."

Metler and Piszar, who did not stop when ordered to do so, "had to be pursued" in order to be apprehended, with Metler, in particular, "high tailing it." As the other officers approached, they yelled several times for the women to halt, saying "stop," and "[p]olice" while Sanford stayed with Kazemian. Sanford estimated that Piszar, Fritzges and Metler were approximately twenty-five feet away until Sanford's partners got closer. At that point, the three "knew the game was over" and stopped. Metler, after moving twenty-five feet away, attempted to hide behind a large rock before being arrested. As we have described, the last member of the group was able to get away completely. Sanford charged defendants with hunter harassment, obstructing justice and resisting arrest.

The State also presented the testimony of Lieutenant Kelly Gottheimer of the New Jersey State Park Police, who was one of the officers who received Sanford's call for assistance. She and the other backup officers were able to reach the scene in only a minute or two. According to Gottheimer, Kazemian and Metler were "doing some talking" when she arrived and Kazemian in particular was "argumentative about the arrest," trying to engage Sanford and Gottheimer about the matter in an "elevated conversation," not calmly. While she could not recall if profanity was used and did not observe anyone "run away or flee," she did detect "too much movement," people were "walking around" and moving "[f]urther away."

White and Devine testified, corroborating Sanford's description of defendants' conduct and stating that by hollering, running around the woods, following them and "stalking" them, defendants' behavior interfered with their ability to hunt.

The defense presented two witnesses, Fritzges and Piszar, and also played Metler's videotape of the events. Fritzges, who was the first defense witness, acknowledged being in the Park on December 7, 2005, with the purpose to "document the aftermath of any bear being killed." She also acknowledged knowing Metler for approximately ten years, Piszar for eight years and Kazemian for two years. She, Metler and Piszar were members of the New Jersey Animal Rights Alliance (Alliance), an "educational organization" informing the public "about the suffering animals endure." The Alliance maintained an anti-hunting position. She and the other defendants had talked about the bear hunt as soon as it was announced and were displeased that it was going to take place. Fritzges denied intending to interfere with the hunt, or even knowing that any of the co-defendants were going to be at the Park during the hunt. She admitted to seeing the other defendants that day and, in fact, walked into the woods with Metler. Following along the trail, they came across Sanford, White and Devine.

Fritzges testified that because she was wearing earmuffs that "clamp against your ear" she had difficulty hearing. Nonetheless, she claimed to hear Metler "and the three hunters engage in a cordial conversation. They were just talking about the environment, about the war. It seemed like the kind of conversation any of us would have with people we know."

Fritzges denied hearing any "screaming or yelling," saying that "[i]f there was, it was muffled and I couldn't tell . . . what it was . . . because those earmuffs really, they're so tight against my ears that it was very, very muffled." She denied "circl[ing]" the hunters, and stated that at no point did she hear Piszar yell or scream.

When Fritzges first heard Sanford yell "clear the area," she saw Metler ahead walking away from "the area" toward the same trail Fritzges was headed to. Fritzges then witnessed Metler "go behind a rock"; however, when "the voice said get up here," Fritzges saw Metler come out from behind the rock and come toward them.

In her testimony, Piszar too acknowledged being in the Park on December 7, 2005. Like Fritzges, she denied any intent to interfere with hunting. She described walking to the trail where she saw Metler and Fritzges. Although she came within four or five feet of them, she did not "exchange words." Eventually she saw the three hunters. She did not speak to them, but saw them talking to Metler and Kazemian. Piszar also noted that Sanford, at times, was taking photos of the group.

Piszar testified that at no point did she "circle the hunters," at least not intentionally, though she was "walking around." She left the hunters talking to Metler and Kazemian, and "went off on my own." She denied screaming, "hooting," or "hollering." Piszar testified that she moved in and out of the "area" because she wanted to "pan around," looking to see if she "saw anything of value to photograph." In particular, she was looking for "a dead animal, a dead carcass, blood trails, any viscera that's left on the trails" from a wounded animal.

Eventually, Piszar heard a male voice command them to "come up here" and recognized it to be Officer Sanford, whom she had met two days earlier in the Park. Piszar claimed to be about fifteen yards away at the time. She did not hear anyone say "you're under arrest."

Once she and the others reached the road where police cars were parked, not until the officers physically placed handcuffs on Piszar did she realize she was being arrested. According to Piszar, none of the defendants "interfered with" being arrested.

Metler and Kazemian did not testify.

At the conclusion of the trial, the municipal court judge found all three defendants guilty. In the Law Division, the judge found defendants guilty of the offenses we have described. As to the charge of interfering with hunting, the Law Division judge concluded that all three defendants engaged in specific acts of physical interference with hunting: hollering and making numerous loud comments, which are known to scare wildlife away; and walking so closely to the hunters in a horseshoe-type formation as to significantly impede the hunters' movement and their ability to fire their shotguns. The judge also concluded that defendants did so for the specific purpose of impeding the hunt.

As to the resisting arrest charge against Kazemian, the Law Division concluded that when Kazemian said Sanford was "just a ranger," Kazemian demonstrated an awareness that Sanford was not merely a hunter, which Kazemian argued he believed was the case. The judge also found that by "pulling away" from Sanford, offering "verbal resistance" and threatening to sue Sanford, Kazemian committed the offense of resisting arrest. The judge concluded that by engaging in such conduct, Kazemian was also guilty of obstructing an officer.

As to the charges of obstructing an officer against Metler, the judge concluded that by running away from Sanford and hiding behind a boulder when he told her she was under arrest, Metler committed the offense of obstructing an officer.

As to the disorderly conduct charges against all three, the judge concluded that by screaming, running around chaotically and encircling the hunters, all three defendants engaged in disorderly conduct.

On appeal, all three defendants raise the following claims, which we have renumbered and consolidated for ease of reference:

I. THE EVIDENCE WAS INSUFFICIENT TO WARRANT CONVICTION ON THE CHARGES IN QUESTION

II. THE MUNICIPAL COURT AND LAW DIVISION ERRED BY FINDING THE STATE'S WITNESSES CREDIBLE.

III. DEFENDANTS' CONVICTIONS ON THE CHARGE OF INTERFERING WITH HUNTING SHOULD BE REVERSED BECAUSE SANFORD ENTRAPPED THEM AND THE COURTS BELOW ERRED BY BARRING EVIDENCE THAT WOULD HAVE ESTABLISHED THE DEFENSE OF ENTRAPMENT

II.

A judgment of conviction in municipal court is appealed first to the Law Division, State v. Cerefice, 335 N.J. Super. 374, 380-81 (App. Div. 2000), where review is de novo on the record. R. 3:23-8(a); State v. Ward, 303 N.J. Super. 47, 55 (App. Div. 1997). In a Law Division trial de novo, the judge must "determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). Thus, the Law Division makes its own "independent" findings of fact, subject to proper regard for relevant credibility determinations made by the municipal court, rather than being limited "by the substantial evidence rule" usually applicable to appeals. State v. Ross, 189 N.J. Super. 67, 71, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983).

On appeal to the Appellate Division, this court does not "engage in an independent assessment of the evidence as if it were the court of first instance," but instead determines whether the Law Division's findings reasonably could have been reached on the record before it. State v. Locurto, 157 N.J. 463, 470-72 (1999). With these principles in mind, we turn to a consideration of defendants' claims on appeal.

We begin by addressing the claim of all three defendants in Point I that the State did not prove them guilty beyond a reasonable doubt of the offenses in question. We begin with the interfering with hunting convictions.

A. Interfering with hunting (Metler, Kazemian and Piszar)

Defendants claim, in substantially verbatim arguments, that the State failed to prove they impeded hunting as proscribed by N.J.S.A. 23:7A-2. They assert that the statute requires a physical interference with hunting that the record does not support any of them undertook, and that to the extent the statute seeks to prevent non-physical interference, it is an impermissible restraint on free speech.

The municipal court judge concluded that defendants were in the Park the day of the incidents "for one purpose and that was to frustrate the hunt." He based that decision both on defendants' movements in and through the hunters as well as on "the hooting and the hollering and the loud comments," conduct he found was antithetical to hunting.

The Law Division reached the same conclusion, though it provided additional reasoning. The judged acknowledged defendants' claim that their purpose was solely to document the hunt and its consequences rather than interfere with it. The court held that "[p]eople can have mixed motives." Nonetheless, the Law Division found substantial evidence in the record that defendants were "acting in concert" and making loud noises "to disturb, drive wildlife away." "I don't think people would make up accounts of loud screaming to this extent." Rather, the court found that "the more sensible understanding of what happened is that there was motivation by these persons to stop this particular hunt."

The judge also reasoned that "documentation of hunting can be obtained from other sources" and that doing so in the manner defendants say they attempted here, "to trail hunters," was "unwise and not sensible." In fact, the Law Division reasoned, if a court construed the situation otherwise, "it would become almost impossible to give effect to the statute." Consequently, the court found all three defendants guilty of a violation of N.J.S.A. 23:7A-2(a) and (g).

The statute in question, N.J.S.A. 23:7A-2, "Hindering or preventing the lawful taking of wildlife," provides in relevant part:

No person may, for the purpose of hindering or preventing the lawful taking of wildlife:

a. block, obstruct, or impede, or attempt to block, obstruct, or impede, a person lawfully taking wildlife;

. . . .

g. make or attempt to make loud noises or gestures, set out or attempt to set out animal baits, scents, or lures or human scent, use any other natural or artificial visual, aural, olfactory, or physical stimuli, or engage in or attempt to engage in any other similar action or activity, in order to disturb, alarm, drive, attract, or affect the behavior of wildlife or disturb, alarm, disrupt, or annoy a person lawfully taking wildlife;

The essence of defendants' argument is that they were convicted for their "expressive conduct" in opposing the hunt, rather than for actually interfering with hunting, and that therefore the statute was applied unconstitutionally as to them. They maintain that they committed no "intentional physical act to impede" Sanford or the hunters and that Sanford's statement that defendants' "true intention[]" was to oppose hunting supports defendants' claim that their speech was protected and did not constitute the offense of interfering with hunting.

The constitutionality of N.J.S.A. 23:7A-1 to -3, known as the Hunter Harassment Statute (Act), was upheld in Binkowski v. State, 322 N.J. Super. 359, 374-75 (App. Div. 1999). We found the Act facially valid, not overbroad and not unconstitutionally vague. Id. at 374-84. The plaintiffs there challenged the statute not as applied, but as an impermissible restriction on free speech. We rejected that claim and concluded that the statute prohibited "conduct that is not 'integral to or commonly associated with expression.'" Id. at 371. Referring to the Act's prohibition against such things as "block[ing]" and "obstruct[ing]" the lawful taking of wildlife, we reasoned that the statute also applied to "mak[ing] or attempt[ing] to make loud noises or gestures" and other "physical activities" in order to disturb or disrupt a person's lawful taking of wildlife. Id. at 371-72. "The statute sets forth a core of easily identifiable and constitutionally proscribable conduct." Id. at 371. We held that the plaintiffs had failed to establish that the Act was "unconstitutional in all of its applications." Id. at 374.

Defendants acknowledge Binkowski, but assert that here the statute was unconstitutional as applied. Among the factors they point to in support of their claim that the State failed to prove their intent to disrupt or hinder the hunt are: a lack of evidence that they intentionally "circled the hunters," or that the hunters "seriously attempted" to get them to stop; in spite of the claim that hunting requires participants to be quiet, the videotape showed the hunters' "loud talking" and trying to "engage" defendants in "conversation"; Piszar and Fritzges explained to Sanford that they were in the woods to document the hunt, thereby acknowledging their acceptance of the fact that the hunt was going to go forward; the lack of evidence that all defendants made loud noises with the intent to interfere with the hunt; the likelihood that any offensive loud noises were caused by the fifth activist who escaped; and the video evidence contradicted much of the testimony concerning defendants' actions. These contentions lack merit for several reasons.

First, defendants are urging a view of the facts that the Law Division was free to, and did, reject. Second, the Law Division's findings make it abundantly clear that all three defendants were found guilty because of their physical conduct, not because they verbally expressed their disapproval of hunting. The Law Division found that Sanford identified all three defendants as among the group who were "walking around us, haphazardly" while the hunters were attempting to hunt, forming a "[h]orseshoe type formation" to their sides and rear, following behind the hunters at a distance of ten to twenty feet. When the hunters attempted to move onto a different course, defendants followed, getting as close as six feet away from the hunters. When Sanford asked that defendants allow them to hunt in peace, defendants ignored the request and continued following them nonetheless. We conclude that this evidence amply supports the Law Division's conclusion that by their physical conduct, defendants interfered with hunting.

Finally, defendants claim that the hunters were making as much noise as defendants were if not more, speaking in loud disruptive voices and engaging defendants in conversation. This argument ignores the evidence that the hunters tried to avoid them initially, and that it was defendants' disruptive behavior that engendered the hunters' comments. Moreover, defendants' assertion that "[c]learly, the only person doing the screaming was the woman who was not apprehended" fails to address the evidence in the record that all the group members were yelling at one point or another, or the fact that it was not only the screaming or yelling that constituted the interference with the hunt, but it was the encircling of the hunters and the relentless following of their every move as well.

Finally, defendants refer to videotape evidence that they have not provided on appeal. Because they have not provided the videotape, we decline to consider their arguments concerning it other than to note that defendants do not refer to anything in the video that significantly contradicts the testimony of the State's witnesses. Accordingly, for all of these reasons, we are satisfied that defendants' arguments concerning their conviction for interfering with hunting, N.J.S.A. 23:7A-2, lack merit. The Law Division correctly found them guilty on that charge.

B. Disorderly conduct (Metler, Kazemian and Piszar)

Defendants assert that there was insufficient evidence upon which to convict them of disorderly conduct. The municipal court judge considered the "woods" a "public place," found the hunters were pursuing a lawful activity in that place, and concluded that defendants' "loud" and sometimes "abusive" language and the manner in which they "walked around and created a din of noise in these woods" constituted disorderly conduct under the statute. The Law Division judge implicitly drew the same conclusions, but did not squarely address the proofs because he merged the disorderly conduct convictions with the interference with hunting convictions.

Under N.J.S.A. 2C:33-2(a), a person is guilty of disorderly conduct if, with the "purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," he or she "[e]ngages in fighting or threatening, or in violent or tumultuous behavior," or "[c]reates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor." Thus, in order to establish disorderly conduct beyond a reasonable doubt, the State must prove that "the defendant caused public inconvenience, public annoyance, or public alarm, or a reckless risk thereof, by fighting, threatening, violent or tumultuous conduct, or by creating a hazardous or physically dangerous condition by an act serving no legitimate purpose of the actor." State v. Stampone, 341 N.J. Super. 247, 254 (App. Div. 2001).

The conduct in question took place in a public park against members of the public entitled to be using the park, and the evidence supports a conclusion that defendants' purpose was to annoy and inconvenience the hunters. Moreover, Sanford described how defendants' taunts and threats caused the two hunters to "start[] getting a little, you know, shaken up," though Sanford tied that reaction mainly to Kazemian's threats to have his friends come after the hunters and "hunt them down."

White testified that he considered the conduct of all three to be alarming. He stated that defendants' behavior in moving in and out among the hunters, coupled with their belligerent comments, made him nervous and anxious. Devine testified that both Metler and Kazemian asked questions concerning where the hunters lived and said that hunters should be "hunted." Piszar, too, was in the general vicinity at that time, and the evidence supported a finding that she shared Metler's and Kazemian's goals of "threatening" the hunters or creating a "physically dangerous condition" as proscribed by N.J.S.A. 2C:33-2(a).

Accordingly, we conclude that the Law Division correctly concluded that the proofs warranted a finding of guilt on the disorderly conduct charges pertaining to all three defendants.

C. Resisting Arrest (Kazemian)

Kazemian, who was the only defendant to have been convicted of resisting arrest, argues that there was insufficient evidence to warrant his conviction. Specifically, he maintains the State failed to prove he knew that Sanford was a law enforcement officer and that he was aware he was being placed under arrest, or that he intended to prevent Sanford from arresting him.

Kazemian was charged with resisting arrest under N.J.S.A. 2C:29-2(a)(1), which makes it unlawful to "purposely prevent[] or attempt[] to prevent a law enforcement officer from effecting an arrest." The elements of that offense are "that an arrest was being effected, it was being effected by a law enforcement officer, that defendant knew he was a law enforcement officer, and that defendant resisted the arrest." State v. Simms, 369 N.J. Super. 466, 470 (App. Div. 2004). The State thus had the burden to "prove beyond a reasonable doubt that it was defendant's conscious object to prevent his arrest." State v. Ambroselli, 356 N.J. Super. 377, 384-85 (App. Div. 2003).

We are satisfied, as was the Law Division judge, that Kazemian's defiant statement to Sanford that Sanford was "just a ranger" indicated Kazemian realized Sanford was an officer. Moreover, the testimony of Kazemian's pulling away from Sanford, his refusal to submit to handcuffs, his failure to obey Sanford and the threat he made to Sanford all supported the charge of resisting arrest.

Moreover, Sanford specifically testified that it was not until he had removed his hunting garb and revealed his uniform, badge, Park Service Police patch, name tag and gun belt that he told Kazemian he was under arrest. It was after Sanford revealed his law enforcement uniform that Kazemian said that Sanford was "nothing but a G-- damn f---ing ranger," and made a type of "shrugging" movement, "flinging" Sanford away as Sanford attempted to physically bring Kazemian off the ledge. The record thus belies Kazemian's assertion that at the time Sanford tried to handcuff him, he was unaware Sanford was a police officer.

Equally unavailing is Kazemian's argument that he did not attempt to prevent an arrest, but "only indicated an unwillingness to be handcuffed due to the dangerous conditions on the hill and a reasonable fear of injury." Sanford's testimony establishes that Kazemian's first response was to pull away from Sanford's grasp, followed by his dismissive "you're only a ranger" remark. Sanford asked Kazemian repeatedly to come down and submit to arrest. Not until Sanford had made numerous such requests did Kazemian make the comment about falling.

Thus, Kazemian's contention that he was motivated solely by a concern for his own safety is pretextual; Kazemian expressed no concern for his safety until he had already manifested his intention to frustrate the arrest. Accordingly, we agree with the Law Division's conclusion that the State's proofs satisfied all elements of the offense of resisting arrest.

D. Obstructing a public servant from performing his lawful duty (Metler and Kazemian)

Metler and Kazemian both maintain that the evidence was insufficient to warrant their conviction for obstructing a public servant from performing his lawful duty, N.J.S.A. 2C:29-1(a), which provides:

A person commits an offense if he purposefully 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.

[N.J.S.A. 2C:29-1(a).]

Thus, in order to prove a defendant guilty, the State must show that the defendant physically interfered with the officer, that the defendant acted purposefully, and that in so acting he or she knew what he or she was doing would interfere with the officer. State v. Berlow, 284 N.J. Super. 356, 360-61 (Law Div. 1995).

As to Metler, the evidence demonstrates that: Sanford loudly yelled that defendants were under arrest; after he made that announcement, Metler "hightailed it" and hid behind a boulder. The State maintains, and we agree, that this evidence satisfies the elements of the offense of obstructing a law enforcement officer.

As to Kazemian, we agree with the Law Division judge's conclusion that the same evidence that established Kazemian's guilt on the charge of resisting arrest warranted a finding of guilt on the obstruction charge. Indeed, it was for that reason that the judge merged the obstruction conviction with the resisting arrest conviction for purposes of sentencing.

III.

In Point II, defendants argue that the municipal court and the Law Division judges erred by finding the State's witnesses credible. Defendants assert that both courts below misjudged witness credibility because: the State's witnesses' testimony was biased because of their pro-hunting views; there were contradictions among the State's witnesses; and the witnesses' testimony was internally inconsistent. The municipal court and Law Division judges both considered these very arguments and rejected them. "The trial judge is in a better position to weigh the significance of the pertinent factors than is an appellate tribunal. He has the advantage of seeing and hearing the witnesses so that he can not only evaluate their credibility but can also gain a 'feel' of the case which the cold record denies to a reviewing court." State v. King, 44 N.J. 346, 353-54 (1965). None of the arguments raised by defendants is of sufficient merit to justify discarding the municipal court's assessment of credibility and substituting our own determination, especially when our own assessment of credibility would be based only on the "cold record." See ibid.

IV.

Last, in Point III, defendants argue that: their convictions for interfering with a hunt should be reversed because the State entrapped them; and the trial court erred by precluding evidence that would have supported such a defense. We have carefully reviewed defendants' contentions in light of the record and applicable law. Having done so, we conclude that their arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

We have consolidated the three appeals for purposes of disposition. The three defendants had a joint trial in the municipal court and their appeals were argued together in the Law Division. Because all three participated in virtually identical conduct, our discussion of the facts should be deemed to refer to all defendants unless we specify otherwise.

A fourth defendant, Theresa Fritzges, was also convicted in the Law Division but has not participated in this appeal.

According to Sanford, Kazemian admitted that the suit would be trumped-up and frivolous, as Kazemian was threatening to fall down and then sue him.

(continued)

(continued)

29

A-4068-06T4

June 20, 2008