STATE OF NEW JERSEY v. MARKLAND GRANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5541-06T45541-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARKLAND GRANT,

Defendant-Appellant.

______________________________________________________

 

Argued September 10, 2008 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Appeal No. 0089-06.

Thomas H. Darcy argued the cause for appellant.

Peter J. Gallagher, Assistant Prosecutor, argued the cause for respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Mr. Gallagher, of counsel and on the brief).

PER CURIAM

In this appeal, defendant contends that the evidence regarding his conduct in the Tropicana Casino, on July 11, 2007, was insufficient to support his conviction for disorderly conduct, which is defined by N.J.S.A. 2C:33-2(a)(1) as "fighting or threatening" or "violent or tumultuous" conduct committed "with the purpose to cause public inconvenience, annoyance and alarm." We find no merit in defendant's arguments and affirm.

During the municipal trial, the judge heard the testimony of Jean Ducas , a security officer employed by the Tropicana Casino, and defendant. Ducas testified that approximately one week earlier than the event in question, defendant was evicted from the casino because he was looking for credit in slot machines. On July 11, according to Ducas 's testimony, he recognized defendant from the earlier eviction and asked him to leave. According to Ducas , while "a lot of people were around" in the casino, defendant got "really loud," and "push[ed] people away," including Ducas and another security officer. Defendant continued to refuse to leave, necessitating a call to the state police for assistance.

Defendant testified that he entered the casino as he had every day for the last twelve years when, approximately five minutes later as he was walking through the casino, a security officer came up from behind and touched him on the arm. With that, according to defendant, he "shook [the officer's] hands off." He then gave this version of the events that followed:

Q. Now when this incident allegedly happened with Officer Ducas were there customers on the floor?

A. There was a lot of people.

Q. There was a lot of people around?

A. It's a casino.

Q. At any point did you raise your voice?

A. I, when they can't give me a reason why I'm supposed to leave a casino and there were about 12 people there telling me to leave the casino it get a little loud 'cause I wanted to see the cops there at the time, so I tell them I don't want to speak to none of them. Get me some officials who could give me a proper understanding what's going on.

Q. And at any time did you push the officer?

A. Don't remember pushing him. Remember him tapping and when he hold onto me, my reflex was to push his hands off. If you call that a push, that's a push.

After considering the evidence, the municipal judge concluded that defendant violated N.J.S.A. 2C:33-2(a)(1) by engaging in the following conduct:

[The security officers] were following you because you were trying to punch out credits and that's against the law. I've been through that --

[DEFENDANT]: Your Honor --

THE COURT: -- in other proceedings. And you were loud, as you are today. You're going to be out of order in a minute. There's no question about it, beyond a reasonable doubt what you did was upsetting to the patrons there and you should have, if you didn't mean it you should have known that that would have happened, engaging in that type of behavior would be, with no legitimate purpose and creating a condition that was upsetting to people in and around, not to mention the officer. You don't have a right to do that, sir.

Defendant appealed to the Law Division. After hearing the argument of counsel, the Law Division judge also found that Officer Ducas , after having evicted defendant a week earlier and after having observed him again on the casino floor, requested that defendant leave. In response, defendant "pushed people around," including Ducas and another officer, while "there were people milling about in the area who were observing what was going on." In short, the Law Division judge gave due regard for the municipal judge's credibility findings and found that the occurrence, as described by the municipal judge, did in fact take place. The Law Division judge concluded that this conduct was prohibited by N.J.S.A. 2C:33-2(a)(1) and sentenced defendant to a jail term of thirty days, which was suspended on the condition that defendant not go on the premises of Tropicana, Hilton and Resorts for two years, and ordered that defendant pay court costs of $158.

Defendant appealed to this court, raising the following arguments:

I. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT GRANT'S CONDUCT ON JULY 11, 2006 OF "YELLING, SWINGING HIS ARMS AND REFUSING TO EXIT THE CASINO FLOORS["] CONSTITUTED "FIGHTING OR THREATENING OR VIOLENT OR TUMULTUOUS BEHAVIOR" AS REQUIRED BY N.J.S.A. [2C:33-2a(1)].

II. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT GRANT HAD A PURPOSE TO CAUSE, OR RECKLESSLY CREATED A RISK OF CAUSING, PUBLIC INCONVENIENCE, ANNOYANCE OR ALARM, BY HIS CONDUCT ON JULY 11, 2006 OF "YELLING, SWINGING HIS ARMS AND REFUSING TO EXIT THE CASINO FLOOR WHEN DIRECTED."

III. THE COURT MUST REVERSE GRANT'S CONVICTION BECAUSE THE TRIAL COURT RELIED UPON CONDUCT BY GRANT THAT EITHER DID NOT OCCUR ON JULY 11, 2006 OR CONDUCT FOR WHICH HE WAS NOT CHARGED.

IV. THE COURT SHOULD NOT APPLY THE "TWO-COURT RULE" STANDARD OF SUBSTANTIAL DEFERENCE IN THIS CASE BECAUSE THE MUNICIPAL COURT DECISION IS COMPLETELY DEVOID OF ANY FACTUAL FINDINGS AND THE MUNICIPAL COURT ERRED AS A MATTER OF LAW IN APPLYING A NEGLIGENCE STANDARD OF CULPABILITY.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only a few brief comments.

Defendant's argument is chiefly based on his deconstruction of the events that were found to have occurred as a means of suggesting the inadequacy of the proofs. For example, in his brief, defendant dissects the findings into three categories: "yelling," "swinging his arms," and "refusal to exit the casino floor when directed," and argues that none of these circumstances supports a violation of N.J.S.A. 2C:33-2(a)(1). We agree that mere "yelling," for example, would be insufficient to support a conviction on this statute, but defendant did more than just yell. Accordingly, his attempt to convince us that the findings were inadequate to support the conviction in this manner is fallacious; defendant's conduct must be considered on the whole.

It is clear that the findings upon which defendant was convicted are fully supported by the evidence and are not similar to the facts in State v. Stampone, 341 N.J. Super. 247 (App. Div. 2001), upon which defendant greatly relies. As we have observed, defendant's own testimony reveals no dispute that, when requested to leave the casino, defendant was boisterous and caused public annoyance, since he acknowledged in his testimony that "[t]here was [sic] a lot of people around" and that he did "get a little loud." Despite defendant's forceful arguments to the contrary, the factfinders' reliance on Ducas 's credibility and his testimony that defendant pushed him and others, are determinations that are deserving of our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Affirmed.

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A-5541-06T4

September 22, 2008