STATE OF NEW JERSEY v. JOHN McLEOD, III

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4062-07T44062-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN McLEOD, III,

Defendant-Appellant.

________________________________

 

Submitted June 15, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Gloucester County, Municipal

Docket No. A-65-07.

Hoffman Dimuzio, attorneys for appellant (Cristie R. Nastasi, on the brief).

Sean F. Dalton, Gloucester County Prosecutor,

attorney for respondent (Joseph H. Enos, Jr.,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John McLeod, III, was found guilty in the municipal court of four disorderly persons offenses: simple assault, N.J.S.A. 2C:12-1(a)(1); resisting arrest, N.J.S.A. 2C:29-2; disorderly conduct, N.J.S.A. 2C:33-2(a); and criminal mischief, N.J.S.A. 2C:17-3(b)(2). For purposes of sentencing, the assault conviction was merged with the resisting arrest conviction and the disorderly conduct conviction was merged with the criminal mischief conviction, for which jail terms of 120 days were imposed. Appropriate fees and penalties were also imposed and restitution fixed. On appeal, the Law Division, after a trial de novo, upheld the convictions and sentence. Defendant appeals, and we affirm.

According to the State's proofs, on June 8, 2006, at about 5:30 p.m., Franklin Township uniformed police officers Jeffrey McGuigan and Christopher Senor were dispatched to a residence on Hall Avenue on a complaint of a domestic dispute between defendant and his brother Shawn. Shortly after their arrival, they were met by another township police officer, Vincent DiPietro, who was off-duty, but nevertheless responded to the scene because he lived nearby.

When the police arrived, defendant, Shawn and their parents were standing in the driveway of the main residence on the ten-acre property, which was owned by defendant's parents and housed another dwelling in which defendant apparently lived. All four individuals were "yelling . . . back and forth." The officers then separated the family members, McGuigan taking defendant behind the patrol car while Senor remained with the others. Soon afterwards, defendant's mother approached McGuigan and informed him there was a "final restraining order [FRO] out against [defendant] and his father." The officer interpreted that to mean defendant was not allowed on the property. In any event, McGuigan contacted County Dispatch to confirm with the Domestic Violence Registry that a FRO was indeed in effect. Upon receiving verification, defendant was placed under arrest.

McGuigan handcuffed defendant without assistance, although Senor observed that defendant was "very, very uncooperative and boisterous and kind of refused to be handcuffed . . . quietly." Once handcuffed, however, and told to sit in the rear of the patrol car, defendant continued "yelling and screaming, twisting his body and getting tensed up so that he could not be placed in the rear . . . seat . . ." Defendant would not enter the patrol car of his own volition, so Officer DiPietro had to assist McGuigan in physically placing him in the vehicle. Officer Senor also observed defendant "tensing up . . . pulling away" as the other officers attempted to place him in the patrol car, all the while being "boisterous" and insisting it was unfair and that there was no reason for his arrest.

Once inside the vehicle, defendant began screaming. He laid on his back with his head by the passenger's side and, with boots on, kicked the rear driver's side window with his feet, breaking it on his second attempt. The glass shattered and struck Officer Senor, who was standing only one or two feet away, in the face and arm, causing four or five cuts to his hand.

Obviously crediting the State's proofs, the municipal court judge found defendant guilty of all four disorderly persons offenses charged. After his de novo review, the Law Division judge, acknowledging the municipal court's opportunity to assess the credibility of the witnesses, and determining, independently, the State's proofs to be credible, upheld defendant's convictions. With particular respect to the resisting arrest offense, the Law Division judge found:

Officer DiPietro testified they tried to place the defendant in the vehicle, he became rigid, would not allow them to place him in the vehicle. Then they explained how physically they had to position the defendant and sort of bend him up to get him into the vehicle. Somehow, the defense wants the Court to believe that that's not resisting arrest, and what I take it from the defense's argument is that once the cuffs were placed on the defendant that he had no ability to resist arrest. And, quite frankly, I don't buy that argument. I think the defendant has a continuing responsibility to obey orders and do what's appropriate, and the ability to resist arrest did not stop upon being placed -- the handcuffs placed on the defendant.

. . . .

There was testimony regarding the fact that defendant [was] trying to convince the officers that there was not an FRO in effect, and maybe there wasn't. I find that to not be probative of this issue at this time. After being placed in the patrol car, for whatever reason, the defendant continued his conduct, such to the point that he kicked out the back window of a police car, and the glass, by testimony, struck an officer and there was a slight injury.

I do not find that the defendant intentionally harmed the officer, although that was the result and he's responsible for that. I do find that, however, he was intentionally kicking the window, trying to kick it out, and that act in itself was a continued resisting of arrest. Again, the defendant does not have the right to resist even after being cuffed.

On appeal, defendant contends that the State failed to prove the requisite elements of resisting arrest and that the municipal court erred in denying him a postponement to allow his mother to testify. We find no merit as to either contention. R. 2:11-3(e)(2).

As to the first claim, defendant appears to be arguing that once handcuffed, a procedure with which he supposedly cooperated, he was not capable thereafter of resisting arrest. We disagree.

A person is guilty of the disorderly persons offense of resisting arrest if he "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(1) (emphasis added). The offense requires a purpose to prevent the arrest. State v. Ambroselli, 356 N.J. Super. 377, 384 (App. Div. 2003). Resisting arrest, without more, is a disorderly persons offense. The use of force against the arresting officers is not required as a basis for the charge. State v. Williams, 229 N.J. Super. 179, 181-83 (App. Div. 1988). The offense against the justice system, not the officers attempting to arrest. State v. Brannon, 358 N.J. Super. 96, 104 (App. Div. 2003), rev'd o.g., 178 N.J. 500 (2004).

To be convicted, a defendant must know that he is being arrested since it must be his conscious object to prevent his own arrest. Ambroselli, supra, 356 N.J. Super. at 384-85, 388. Even if the arrest is illegal, resisting it will nevertheless be criminal if the arrest is done under color of official authority and is also announced. See State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997). Indeed, the final paragraph of N.J.S.A. 2C:29-2(a) does not permit an "unlawful arrest" defense where the law enforcement officer is acting under color of official authority and announces his intention. State v. Seymour, 289 N.J. Super. 80, 85 (App. Div. 1996). This provision is consonant with the principle that a person may not use force to oppose unlawful arrest as long as unlawful force is not being employed by the arresting officer. See N.J.S.A. 2C:3-4(b)(1)(a); State v. Simms, 369 N.J. Super. 466, 472-73 (App. Div. 2004); State v. Casimono, 250 N.J. Super. 173, 182-185 (App. Div. 1991), certif. denied, 127 N.J. 558 (1992).

Here, the State proved all the requisite elements of the disorderly person's offense of resisting arrest. Defendant clearly knew he was under arrest, and the officers were plainly acting under color of official authority. Moreover, their belief that defendant was in violation of an extant FRO was reasonable under the circumstances, and the officers employed no unlawful force in effectuating defendant's arrest. Instead, defendant used force in opposing an arrest he deemed to be unreasonable, which he is not permitted to do. Immediately after he was handcuffed, he tried to prevent the officers from seating him in their patrol vehicle. He "pulled away" and grew boisterous and argumentative. His body became rigid and "tensed up," requiring a second officer's assistance to physically place him in the police vehicle and to continue effectuating the arrest. Once inside the vehicle, defendant resorted to physical force in a further, last ditch effort to interfere with completion of his arrest by kicking the window twice, ultimately succeeding in breaking it and injuring a police officer. Under the circumstances, we are satisfied that defendant demonstrated the requisite purpose to prevent his arrest and thus the proofs established all the composite elements of the disorderly person's offense of resisting arrest.

We are equally satisfied that the municipal court did not abuse its discretion in not allowing defendant more time to secure the attendance of his mother as a witness. The granting of an adjournment is within the discretion of the trial judge, State v. Bellamy, 329 N.J. Super. 371, 378 (App. Div. 2000), who must balance concerns over administrative disruption with a defendant's legitimate ability to present a viable defense. Ibid.; see also State v. Middleton, 299 N.J. Super. 22, 34 (App. Div. 1997). Clearly, a defendant does not have the right to call a witness who will offer irrelevant testimony. State v. Garcia, 195 N.J. 192, 203 (2008); see also Crane v. Ky, 476 U.S. 683, 689-90, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 644 (1986). Moreover, the right to compulsory process "does not mean that a defendant may violate with impunity rules of court that require the production of a witness list, or that he may issue a subpoena, for a witness long known to him, so late in a criminal trial that a significant delay in the proceedings will be incurred." Garcia, supra, 195 N.J. at 203.

Here, on the day of trial, defendant moved for the first time for a postponement to secure the presence of his parents, whom he wished to testify. Although the motion was denied, defendant was given the opportunity to call his parents and to have subpoenas served upon them immediately. Indeed, defendant's father eventually appeared and testified, but his mother did not.

Under the circumstances, the municipal court judge acted reasonably. Defendant was aware of the trial date, which was seventeen months after the incident, and of his intention to call his parents as witnesses. Moreover, he was given sufficient time to secure the presence of at least one of them. As to the other parent, defendant has made no proffer of his mother's putative testimony, much less how it would have assisted his defense. We have already noted that N.J.S.A. 2C:29-2(a) does not recognize an "unlawful arrest" defense where the law enforcement officer is acting under color of official authority, which is plainly the case here. Without some indication that a postponement would have proven beneficial to defendant or a denial thereof foreclosed his ability to present a viable defense, we perceive no abuse of discretion in the action taken by the municipal court judge.

 
Affirmed.

Apparently, the 1992 FRO barred defendant from his parents' residence, but allowed him to live in another dwelling on the ten-acre property that his parents owned.

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A-4062-07T4

July 20, 2009