STATE OF NEW JERSEY v. MARGINIA R. KEMP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-aa0569-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARGINIA R. KEMP,

Defendant-Appellant.

 

Submitted June 3, 2010 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-118.

Porzio, Bromberg & Newman, P.C., attorneys for appellant (Christine N. Bradshaw, of counsel and on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Marginia R. Kemp, appeals from her conviction in the Law Division on appeal de novo on the record, pursuant to Rule 3:23-8(a), from the Netcong Municipal Court. She was found guilty of obstruction of the administration of law in violation of N.J.S.A. 2C:29-1a, graded as a disorderly persons offense, N.J.S.A. 2C:29-1b; and careless driving in violation of N.J.S.A. 39:4-97. On the obstruction conviction, defendant was fined $256, and the court ordered $33 in costs along with $50 and $75 assessments for the Victims of Crime Compensation Board and Safe Neighborhoods Service Fund, respectively. On the careless driving conviction, defendant was fined $106 and assessed $33 in court costs.

On appeal, defendant argues:

I. THE TRIAL COURT'S DECISION SHOULD BE REVERSED BECAUSE THE STATE HAS NOT PROVEN BEYOND A REASONABLE DOUBT THAT APPELLANT KEMP OBSTRUCTED THE ADMINISTRATION OF LAW IN VIOLATION OF N.J.S.A. 2C:29-1(a).

A. Appellant Kemp did not act with the required mens rea of "purposely" when her car door tapped the officer's knee because she was merely trying to exit her vehicle to secure her safety from oncoming traffic.

B. Appellant Kemp did not commit any independent unlawful act because she fully complied with all the directions of the officer.

C. If any ambiguity exists in the language of the statute N.J.S.A. 2C:29-1, it must be interpreted in favor of Appellant Kemp.

II. THE TRIAL COURT'S DECISION SHOULD BE REVERSED BECAUSE THE STATE HAS NOT PROVEN BEYOND AREASONABLE DOUBT THAT APPELLANT KEMP DROVE CARELESSLY IN VIOLATION OF N.J.S.A. 39:4-97.

A. Appellant Kemp exercised reasonable care in the control, management, and operation of her automobile when she briefly swerved out of her lane in order to avoid collision with another vehicle.

We affirm.

In his review of the municipal court proceeding in this matter, Judge Dangler exercised his independent fact-finding responsibilities on "de novo on the record" appeal, as prescribed by Rule 3:23-8(a). Initially, he set the scene, finding that "a major water main break" had occurred.

The Department of Public Works employees were dispatched, and because of the substantial break, there was a need . . . to slow traffic . . . and perhaps divert traffic around the area that was being worked on. And initially the individual who was slowing traffic, redirecting traffic was not a police officer but rather someone from the Public Works Department . . . .

The State had proffered evidence that defendant's automobile failed to slow down, requiring the worker to move out of the way so he would not be struck. Defendant's car went past him to where his supervisor was standing. The supervisor corroborated the worker's account and also testified that when he looked up and saw the fast-approaching car, he signaled for it to stop, yelled at the driver (defendant), to stop, and "jumped up on the curb." Defendant "rolled down the window and started yelling at [him]." A police officer on the scene "walked over and took over."

The police officer, Patrolman Borgia, summarized the foregoing account from his perspective and continued by testifying that defendant, when signaled by the work team supervisor, "applied the brakes heavily, causing the front end to dip." As he approached the vehicle he observed defendant "lean over her car and start pointing a finger and shouting at [the supervisor]." Borgia recounted his exchange of words with defendant, describing her in a way that can be summarized as verbally combative. He "asked her twice . . . to move her car along," but defendant continued to argue. "And finally, [he] told her to pull over." Defendant responded with continued argument, but did pull up several feet. Borgia then recounted that he told her she was "still blocking the lane of traffic," and asked her to "move it up a little bit?" He went on:

At that point she actually firmly accelerated, which almost led me to believe that she was leaving the scene. She went approximately [thirty to fifty], yards up and stopped. . . . [T]hen I approached the car and . . . I asked her for her license, registration and insurance. And she just became argumentative with me, she was very upset, telling me that the stop's illegal, I have no right to stop her. I asked her several more times for her license, registration and insurance and each time she would ignore me and just tell me I had no right to pull her over.

Borgia's further efforts met with continuing resistance, and defendant displayed her cell phone, stating that she was calling the prosecutor's office. Further contretemps occurred, involving, among other events, defendant's effort to step out of her car. Another police officer became involved. Eventually, defendant was placed under arrest and transported to police headquarters where she was charged with two violations of the Criminal Code and with careless driving.

Defendant testified, asserting that, as she came upon the scene, she had to "veer[] off to . . . the right" to avoid another car that had "entered [her] lane from the eastbound." That is when she "saw the gentleman on . . . [her] right, on the sidewalk, telling [her] to slow down." She asserted that person "told [her that she] needed to slow down and [she] . . . told him [she] wasn't speeding. . . . [T]hen he started yelling at [her] . . . , and he just kept going on and on." She added, "I yelled I wasn't speeding." A police officer approached and told her to pull ahead. She complied with the request.

. . . I pulled ahead about . . . [ten] to [twenty] feet, and . . . that wasn't good enough, because the . . . eastbound traffic was entering the westbound lane. And he told me I needed to move up . . . to get out of the way of danger....I complied right away[,] . . . pull[ing] up about [ten] more feet. . . . Then he told me the reason he was stopping me because I failed to yield to an emergency vehicle.

The officer asked her for her driver's license, registration and insurance. She testified: "the whole time he was yelling at me . . . . I told him he was harassing me, because I'm trying to get the information." In her testimony, defendant denied a failure to yield to an emergency vehicle. She went on to deny that she had attempted to step out of her vehicle, and testified, further, that she told the police officer she "felt like [she] was being harassed and [she] was going to . . . follow up with a complaint," which, she claimed, she did.

Based upon his independent evaluation of the record, with "due deference to the ability of the municipal judge to weigh credibility of witnesses, looking at the demeanor, presentation that the witness provides," see State v. Locurto, 157 N.J. 463, 474 (1999); State v. Johnson, 42 N.J. 146, 161 (1964), Judge Dangler found:

the record is . . . extremely clear and convincing that we have what certainly appears to be an emergency situation presenting itself. Flashing lights, emergency crew responding, the individual that was slowing up traffic was visible, had a flashlight, brightly colored clothing. All this was found by the municipal judge to be very compelling. And yet it appears clearly from the record as well as the testimony of the police officer who did arrive in time to make the observations of the operation of [defendant's] vehicle to be operating in such a manner that it was done without due caution circumspection.

. . .I do find that the record is very clear from, again, the testimony that was presented by the municipal police officer, together with . . . the Department of Public Works representative, that [defendant] did operate this vehicle in circumstances in which she did not show due care and circumspection.

I find the record clearly supports the finding of careless driving. . . .

Turning next to the charge of obstruction, granted the disorderly conduct was not found, we have the officer making multiple directions to . . . [defendant] to provide her documentation from her vehicle. It is very clear to the Court, notwithstanding these directions, she did not comply and became combative and argumentative.

. . .She continued to disregard [the] orders [of the police officer].

I don't find there was any intent. It was an unfortunate thing where the officer was apparently hit by the door as it opened. I make no finding that there was any intention with regards to that, and I don't think the municipal judge did. But the record is very clear that the conduct of the defendant on that given day disregarded the requests of law enforcement, obstructed, if you will, the ability of the officer to perform his duty.

I find accordingly the Court affirms the decision of the municipal court on the statute. . . .

On review of a trial court, we are required to defer to that court's findings and conclusions of fact supported by substantial credible evidence in the record. This general standard applies in appeals from Law Division reviews of municipal court proceedings. See State v. Locurto, supra, 157 N.J. at 470-74 (1999); State v. Johnson, supra, 42 N.J. at 160-62 (1964).

[O]ur appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.

[Fagliarone v. Township of North Bergen, 78 N.J.

Super. 154, 155 (App. Div.), certif. denied, 40

N.J. 221 (1963).]

In reviewing the resolution of issues of law, as distinguished from the conclusions stemming from the findings of fact, however, this rule of deference does not apply. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). We are required to make an independent evaluation. Ibid.

Judge Dangler's findings and conclusion of fact are well supported by the record. He was correct in his legal determination that defendant's purposeful, ill-considered acts in resisting the authority of the police officers involved, in the circumstances satisfied the specific requirements of the obstruction statute as set out in N.J.S.A. 2C:29-1a and the Criminal Code's general definition of "purposely" contained in N.J.S.A. 2C:2-2b(1). See State v. Berlow, 284 N.J. Super. 356, 360-61 (App. Div. 1995); State v. Manning, 146 N.J. Super. 589, 591-92 (App. Div. 1977). Judge Dangler was also correct in his application of the careless driving statute, N.J.S.A. 39:4-97.

 
Affirmed.

(continued)

(continued)

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A-0569-08T4

July 7, 2010