STATE OF NEW JERSEY v. MONICA MARINI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4421-07T44421-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MONICA MARINI,

Defendant-Appellant.

_________________________________________________

 

Argued January 7, 2009 - Decided

Before Judges Stern, Waugh and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Municipal Appeal No. 84-07.

Mark J. Molz argued the cause for appellant

(Law Office of Mark J. Molz, attorneys; Logan M. Terry, on the brief).

Jennifer Stonerod, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor,

attorney; Ms. Stonerod, of counsel and on

the brief).

PER CURIAM

Defendant appeals from a judgment of conviction for violating N.J.S.A. 2C:29-1(a) (obstruction of justice) following a trial de novo. The matter had been downgraded to a disorderly persons offense before the trial in municipal court. The Law Division imposed a $100 fine and $33 in costs. Defendant claims that her conviction must be reversed, and a judgment of acquittal entered, because she was convicted in the Law Division of an offense for which she was neither charged nor convicted in municipal court. On this appeal defendant argues that due process was violated because defendant was convicted as a result of "three alternative fact patterns"; that she could not be convicted for obstructing the administration of justice resulting from her exercise of Fourth Amendment rights in refusing to permit a warrantless search of her house; that "the police lacked probable cause and exigency when they demanded entry [to her home] without a search warrant at 2:00 a.m."; and that the Law Division failed to give appropriate deference to the credibility findings of the municipal court.

The evidence presented in the Southampton Township Municipal Court included the following. Trooper Christopher Lyons testified that, while patrolling in Southampton Township on March 5, 2007, around 1:30 a.m., his police vehicle was struck by paintballs. Lyons questioned defendant's son, fifteen-year-old Vincent Marini, after seeing Vincent walking alone down the street in his nearby trailer park neighborhood. Vincent was en route "to a friend's house in the trailer park to pick up paintball equipment." Because Lyons was aware of an applicable 10 p.m. "curfew," he put Vincent in the patrol car and drove him home.

Upon arrival at Vincent's residence, defendant answered the door. Lyons told defendant that his vehicle had been hit with paintballs, as had a tractor trailer which reported a similar incident. Lyons also told defendant he "found her son walking in the trailer park and that [he] suspected him of shooting paintballs at vehicles on [Route] 206." Lyons asked to see Vincent's paintball gun which defendant gave him. Lyons examined the paintball gun and gave it back to defendant before returning to his car to speak with Vincent. Thereafter, Lyons asked defendant if he "could see the paintball gun again for further examination." According to Lyons, defendant "handed it to [him] and [he] examined it further."

While Lyons was holding the gun defendant "grabbed the paintball gun from [his] hand and pulled it into the house." Lyons indicated that he "was standing outside the house and she was standing in the doorway" when this happened. Lyons informed defendant he was taking the gun "for evidence," and requested that defendant give him the gun again, but defendant refused saying, "no, you can't take it."

According to Lyons:

I told [defendant] to get out of the way, that I was going to take the paintball gun, but she was between me and the paintball gun. I was standing outside the house and she was standing in the doorway. And at that time she refused to get out of the way, so I entered the doorway. I was giving her the verbal command to get out of the way or to give me the paintball gun and she refused to do either.

And so she closed the door on me when I was standing in the doorway, preventing me from entering the house, so I -- I got through the door. She was standing in front of me blocking me with her back facing me. And then she -- she wouldn't get out of my way after I was giving her verbal commands to move and give me the paintball gun, so I placed her under arrest.

Lyons further testified that he issued a summons charging defendant because she "physically prevent[ed]" the officer "from obtaining evidence," not because "she didn't allow [him] into her home." According to Lyons, defendant "took the evidence from [him] and prevented [him] from obtaining the evidence for this case." Lyons immediately "told [defendant] she was under arrest for obstruction" when she grabbed the gun and closed the door. In response, Lyons then went "inside the door of the house . . . [b]ecause that's where she was." After defendant's motion for judgment of acquittal was denied defendant testified in her own defense. She stated that after telling Lyons that she thought Vincent "was in bed sleeping," he reported that Vincent was in the police vehicle because "Vincent had shot a cop car and a tractor and trailer." Defendant declined to let Lyons enter the house, but said she would look in Vincent's room to see "if there's something there." She took his paintball gun to Lyons and "stuck [her] finger up the barrel to show [him] that it had not been fired."

Lyons examined the gun, gave it back, and then talked with another trooper who arrived on the scene. Thereafter, he returned to defendant, asked for the gun again, and in response to her inquiry regarding why, told defendant that Vincent was "under arrest for shooting the paintball gun at the patrol car and at the tractor and trailer."

Defendant reacted by stating there was no need to arrest Vincent, as "the gun was clean." Defendant testified that Lyons then said "ma'am, either you get me the gun or I'm coming into your house and I'm getting it." When Lyons repeated that statement defendant told him he "was not coming into [her] house." Defendant indicated she then "turned around [but] did not shut the door on the officer," and asked her other son, Gary Marini, who was sitting on the sofa, to call his father. According to defendant, Lyons warned Gary that he would be arrested if he moved, and then tried to pull defendant "out the front door." When Lyons could not pull defendant out, the other officer on the scene "came over, grabbed [her], [and] ripped [her] out of the house."

Defendant further testified that Lyons then entered her house and began screaming at Gary "to find the gun," so defendant told Gary "it's on the kitchen table." Gary gave the gun to Lyons.

Gary also testified. His testimony was substantially identical to defendant's. He was sleeping on the couch when "the cops came and knocked on the door." Gary indicated that, after examining the gun and returning from his vehicle, Lyons said about "twice [or] three times" to defendant "ma'am, get me the gun or I'm going to come in and get it." When defendant turned around and asked Gary to call his father, one of the troopers entered the house, picked up defendant and "rip[ped] her out of the house."

Vincent also testified. However, he did not hear what was said on the porch because he was in the patrol car. He described how a paintball gun operated, that he lent a hopper and tank to a friend, and was called by the friend at about 1:12 a.m. to "come get [his] paintball stuff before it's not here in the morning." He left his home and was arrested en route.

The municipal court judge found defendant guilty of obstruction, which occurs when one "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." N.J.S.A. 2C:29-1(a).

The judge stated:

I've heard the testimony of the officer that he was investigating a paintball incident; that he asked to inspect -- he came to Miss Marini's residence. He asked to look at her son's paintball gun. She gave it to him; she went and retrieved it and gave it to him. He inspected it. He gave it back to her.

He went out to the car and then talked to her son and then he came back and he asked for the gun a second time. And by testimony, he says that he asked for it twice. One of the defense witness, Gary, I believe, Marini, said that he asked for it two or three times. So it is -- there is credible evidence that the officer asked for the item back and she refused to give it to him; that the officer then told her that if she didn't give it to him, he was going to he was going to come into the house and take it from her which he eventually did.

The question here is whether or not she obstructed the investigation and I think it's clear that she did. The officer asked for the gun back after she had already given it to him once and she refused to do that. That's -- that obstructed his investigation of the incident.

Now the argument's made that, you know, that the paintball gun had not been had not been used, and that Mr. Marini, the son, had not used the gun; and, therefore, the paintball gun was not important. It really doesn't matter. The officer's got a legitimate interest in investigating the matter. He looked at the gun. He wanted to look at it again. I don't know if he wanted to compare it to some others, but he had a legitimate purpose in asking for the piece of evidence and she refused to give it to him after she had already given it to him once.

I'm satisfied that refusing to do that, and refusing to cooperate with the officer, that she interfered with his investigation. I'll therefore enter a finding of guilty.

The other argument is that he wasn't allowed to come into the house, but that's not what she's charged with. She's charged with obstructing and refusing to give evidence, give him the evidence that he requested and then blocking him when he tried to retrieve it.

There's also an argument that there's exigent circumstance argument where he's trying to recover the evidence he thought may be evidence of an offense and there is an emergency or an urgency I should say there, that the evidence is going to be tampered with or it's going to be destroyed. So I think that under the circumstances, he had the right to ask for the evidence and take whatever -- action is necessary to secure it.

I'll therefore enter a finding of guilty to the charge against the defendant.

On the trial de novo, Judge Harold B. Wells, III noted that it seemed to him that the municipal court convicted defendant, "not based on the door closing on the trooper, as charged, but because she snatched the gun back from him out of his hands." The complaint charged defendant with obstruction "specifically by closing the door on a trooper and physically blocking entry into a home," and Judge Wells asked if defendant could be convicted based on the facts "as they developed at the trial rather than on the facts that the trooper originally charged." Defendant complained that she was convicted "of an offense that she wasn't charged with," while the prosecutor argued that the charges could be amended so long as "it's not a substantial deviation . . . [and] she was [still] being charged with obstruction" and convicted of that offense.

Judge Wells ultimately concluded that the municipal judge could "conform his findings and conclusions of guilt to the evidence" and by doing so, avoided the constitutional issues related to the "door slamming incident." The judge added that even if the municipal judge "should not have amended the charge," under Rule 3:23-8 he was permitted on trial de novo "to amend the charge to conform to the evidence," and subsequently found defendant guilty because defendant "snatched" the gun back from the trooper. In his comprehensive findings of fact and conclusions of law, Judge Wells found:

In the long history of citizen and police encounters, I would have to say this was probably not the police's finest hour. I think they did, in fact treat Mrs. Marini rather rudely and -- and brusquely under -- under these -- under these circumstances.

But that does not necessarily excuse her conduct either. I think in taking the gun back, snatching it back from the trooper, as the Municipal Judge found, she adopted an improperly obstructionist attitude and intent toward the police.

They were, after all, investigating not a -- a huge crime. Let's face it, it is simply not what they were doing. They were trying to find out who it was that shot their vehicle with the paint gun, and as well, shot another passing by vehicle, a truck.

And therefore, essentially, they were on a legitimate quest. They were acting on the information that they had and the reasonable inferences from the information that this lone boy, walking around late at night, could possibly be involved in this -- in this instance.

And that inference that they had certainly took a major step forward when, in fact, it turned out that there was, indeed, a paint gun in the Marini -- in the Marini house.

And on the first inspection, the police officers handed the -- the police officer handed the gun back, had some further conversation with Mr. Marini, and went back and asked for a second look. And that also, seems to me, proper under the circumstances.

And on that second appearance, or second look, all of a sudden, the evidence of this suspected offense is snatched from the -- is snatched from the officer.

Under those circumstances, and notwithstanding what happened thereafter, which I've already alluded to as not being the best of all possible police work, especially given the fact that these people were in their own homes -- or was -- was within their own home, I -- I do think that there was, as the Judge found, beyond a reasonable doubt, a -- a purpose to obstruct a legitimate investigation by taking this paint gun, snatching it back from the -- from the police officer.

Had there been other charges against the boy, had there been other charges against Mrs. Marini, I don't know how those would come out, given the totality of the circumstances.

But on this charge, I think the State has -- has made out its -- its case, beyond a reasonable doubt. The police were there on a legitimate search, on a legitimate investigation as to who might be committing these -- these acts of vandalism.

And I think -- I think it was improper, under these circumstances, for Mrs. Marini to take the attitude that she did and deliberately deprive this -- the trooper of what might have been key evidence in the case.

Indeed, as we all know, under the circumstances here, it was key evidence. It was evidence that ultimately apparently exonerated him from -- from -- from this offense because he was never charged with it. And to that extent, the police, having the weapon, were able to confirm apparently that he was not the one committing these -- these acts.

So I think there was an obstruction in violation of the statute and I so find beyond a reasonable doubt.

Judge Wells also indicated he gave "due but not necessarily controlling deference" to the municipal court's findings.

Defendant argues it "was error for the Law Division not to give due deference to [the municipal judge's] finding of credibility" when defendant's son was the only witness found credible by the municipal judge. Thus, defendant argues, the Law Division could not find that defendant "snatched" the

paintball gun from the officer, based on Lyons' testimony, because he was "not explicitly found credible."

Municipal appeals are heard by the Law Division by way of a trial de novo. Rule 3:28-8(a). The Law Division's "function is to 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 [municipal court] to judge the credibility of the witness." State v. Johnson, 42 N.J. 146, 157 (1964). With regard to making credibility findings, a municipal court is not required "to articulate detailed, subjective analyses of factors such as demeanor and appearance to support credibility determinations," State v. Locurto, 157 N.J. 463, 475 (1999), and the Law Division must do its own fact finding as to guilt or innocence. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The court can do so based on different findings so long as it is based on the same evidence as before the municipal court, to avoid a double jeopardy preclusion (absent the basis for a plenary trial de novo). See State v. Kashi, 180 N.J. 45, 48 (2004). And on this appeal, we are "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Locurto, supra, 157 N.J. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1998)).

In the present case, the municipal judge's only comments on credibility were as follows:

[Lyons testified that h]e went out to the car and then talked to [defendant's] son and then he came back and he asked for the gun a second time. And by testimony, he says that he asked for it twice. One of the defense witnesses, Gary, I believe, Marini, said that he asked for it two or three times. So it is -- there is credible evidence that the officer asked for the item back and [defendant] refused to give it to him; that the officer then told her that if she didn't give it to him, he was going to ... come into the house and take it from her which he eventually did.

[(Emphasis added).]

Defendant mistakenly interprets the municipal court's statement about credibility to mean that Gary was the only credible witness and the judge believed that defendant "never pulled or snatched the paintball gun from the hands of Trooper Lyons." To the contrary, the reference to Gary's credible testimony was to evidence consistent with Lyon's testimony that defendant refused to give him back the gun. Moreover, the reference to Gary's testimony as supporting the "credible evidence that the officer asked for the gun back and [defendant] refused to give it to him" does not mean the judge found Lyon's testimony, that defendant had snatched it from him, to be incredible. In any event, under Locurto, the municipal court did not have to make more specific findings of credibility, and Judge Wells was required to make his own findings and conclusions on the trial de novo. See Locurto, supra, 157 N.J. at 473-74. We thus reject the contention that having found Gary credible as to a material fact, the municipal court had to have found Lyons to be incredible.

In any event, Judge Wells was not required to make any specific factual findings or completely defer to the municipal court's findings. Cf. In re Phillips, 117 N.J. 567, 578 (1990) (quoting Romanowski v. Brick Twp., 185 N.J. Super. 197, 204 (Law Div. 1982), aff'd o.b., 192 N.J. Super. 79 (App. Div. 1983)) (finding in a de novo police disciplinary hearing the Law Division judge has "the opportunity to consider the matter 'anew, afresh [and] for a second time'"); Johnson, supra, 42 N.J. at 157 (requiring the Law Division judge "giv[e] due, although not necessarily controlling, regard to the opportunity of the [municipal court] to judge the credibility of the witnesses"). Moreover, here deference is "more compelling" because "two lower courts have entered concurrent judgments on purely factual issues." Locurto, supra, 157 N.J. at 474.

We also agree with Judge Wells that he did not have to agree with the municipal judge's basis for finding defendant guilty or that the State had to prove precisely what was alleged in the complaint. Defendant was convicted of obstruction of justice in the municipal court. She was convicted of the same offense on trial de novo. Moreover, pursuant to Rule 3:23-8(c), a municipal appeal operates as "a consent that the court may, during or before the hearing of the appeal, amend the complaint by making the charge more specific, definite or certain," provided the charge is not increased and defendant is not prejudiced. See State v. Koch, 161 N.J. Super. 63, 66 (App. Div. 1978) ("Rule 3:23-8(c) empowers a County Court judge to amend a complaint on appeal from a municipal court. However, such a rule cannot be utilized to charge a more serious offense than that contained in the complaint underlying the prosecution."). Here, defendant was convicted of violating N.J.S.A. 2C:29-1(a) in both courts and she was so convicted based on the very same evidence. So long as the municipal record supports the conviction on trial de novo, there is no due process violation. Defendant does not argue that there was insufficient evidence in the record to support defendant's conviction for obstruction of justice. See Locurto, supra, 157 N.J. at 472 (noting that an appellate court determines whether the trial court's findings could have easily been reached on sufficient credible evidence in the record).

Finally, we agree with Judge Wells that the fact finding and basis for defendant's conviction avoids the need to consider defendant's Fourth Amendment claim. She argues she could not be convicted of obstructing justice "because she exercised her Fourth Amendment right to refuse a warrantless search of her home" and "because the police lacked probable cause and exigency when they demanded entry without a search warrant at 2:00 a.m." The defendant was convicted of obstruction by grabbing the evidence while the trooper was outside the home, not of slamming the door to prevent a warrantless entry. The Fourth Amendment was not offended if he entered the house to physically complete the arrest. State v. Nikola, 359 N.J. Super. 573, 582-86 (App. Div.), certif. denied, 178 N.J. 30 (2003).

Affirmed.

(continued)

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A-4421-07T4

March 11, 2009