STATE OF NEW JERSEY v. CROFTON M. HARDESTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0615-09T40615-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CROFTON M. HARDESTER,

Defendant-Appellant.

______________________________________

 

Argued May 11, 2010 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 09-031.

Michael J. Fioretti argued the cause for appellant (Law Offices of Mallon & Tranger, attorneys; Mr. Fioretti, on the brief; Thomas J. Mallon, of counsel and on the brief).

Ian D. Brater argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief; Mr. Brater, on the brief).

PER CURIAM

Defendant Crofton Hardester appeals from the judgment of the Law Division finding him guilty on de novo review of obstruction of a governmental function in violation of N.J.S.A. 2C:29-1, a disorderly persons offense. We affirm.

The charge arose out of a late-night confrontation between defendant, who was a security guard, and two off-duty police officers. There was conflicting testimony at trial in the municipal court between defendant and the five officers who testified for the prosecution. We summarize the facts, acknowledging each side's version without detail that is unnecessary for our review.

On September 3, 2006, defendant was working as a uniformed security guard at Pier Village, a combination retail commercial and residential complex in Long Branch, New Jersey. At about 1:00 a.m., he saw three men inside one of the buildings and approached them to investigate. The men were a resident of a second-floor apartment and two of his friends, Detective Juan Vasquez of the Long Branch Police Department and Sergeant John Riley of the Red Bank Police Department. The two police officers had accompanied their friend to his building from a party at a nearby restaurant to look for his lost house key. Sergeant Riley had "popped the lock" of the building to get into the lobby.

In the lobby, a verbal argument ensued, with defendant challenging the men's presence and Riley allegedly challenging defendant's authority to question them because they were police officers. Each side alleged that the other poked his finger and engaged in similar aggressive conduct in the course of the confrontation. Defendant called the Long Branch Police Department for assistance.

Sergeant Frank Morey soon arrived followed by Detective Brendan Cahill. Defendant and the two off-duty police officers were out on the street. As Morey was stepping out of his vehicle, defendant immediately approached him and said that he had been assaulted and wanted the two officers arrested and charged. Morey wanted to speak to the officers and first find out whether they were on duty or not. Defendant, however, would not heed his request that he step aside and allow Morey to talk to Riley and Vasquez.

Morey testified at the trial:

I said, "Sir, please, you know, just stay over there. I['m] going to talk to the detectives first." And he didn't he just went, "I want these guys arrested. You're not going to listen to my story." I said, "That's not it, sir."

According to Morey, defendant insisted that the officers be arrested for breaking into the building. Morey tried to separate defendant from the others so that he could speak to the officers, but defendant followed him each time he tried to approach the officers. Morey testified that he told defendant "probably at least 10 times" to stand back while he spoke to the other officers but defendant continued on his "tirade." Morey testified further:

I advised him probably 25 times. . . . [I]t was to the point where I walked and said, "Sir, could you just stay over here?" I turned my back, and he's right on my hip.

Morey conceded that defendant "didn't block my access where I had to push him out of the way. What I would do is, I would walk around him." He described defendant as "enraged" and said the commotion went on for at least five minutes. Morey warned defendant several times that he would be arrested if he did not let him speak to the other officers. Morey said he put his arm up "and I just nicked him on the shoulder like that. He said, 'Well, you assaulted me. I'm going to have your job.'" According to Morey, defendant said he would sue and become rich. Morey then told defendant he was under arrest.

In his testimony, defendant admitted that he "leaned into [Morey] and said, I have got to talk to you." He testified that, after Morey and Riley moved two or three feet away from him, he tried to tell Morey that Riley had assaulted him. According to defendant:

Sgt. Morey turned to me and snapped at me wildly saying if I get two phone calls, who should I speak to first? And I said I called for a supervisor. I don't know what you are talking. And they started whispering and I said what is going on? This guy assaulted me. He used bad language. And Riley [sic] turned and snapped at me again.

Defendant then testified that the three officers roughed him up in placing him under arrest and that he was injured by their actions.

Defendant was charged with obstruction under N.J.S.A. 2C:29-1a. In relevant part, that statute states:

A person commits an offense if he purposely 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.

The State alleged that defendant obstructed Sergeant Morey's investigation of the incident by "physical interference."

The judge of the municipal court found the testimony of the officers generally credible and the testimony of defendant less credible. He found defendant guilty of the offense and imposed a $250 fine, $33 court costs, $50 fee payable to the Violent Crimes Compensation Board, and $75 Safe Neighborhood penalty. On de novo appeal to the Law Division, the Judge of the Superior Court reviewed the record and also found defendant guilty of the charge. He also found the police officers' testimony credible and defendant's testimony not credible. He imposed the same fine and penalties as the municipal court.

On appeal, defendant raises the following arguments:

POINT I THE COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION FOR JUDGMENT AT THE END OF THE STATE'S CASE.

POINT II IN REVIEWING THE TOTALITY OF THE TRIAL TESTIMONY, THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT A CONVICTION FOR OBSTRUCTION.

We reject these arguments.

Our standard of review of the findings of fact and, in particular, the credibility determinations of the trial courts is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 148, 162 (1964)). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Id. at 474; accord Johnson, supra, 42 N.J. at 161. We need not defer, however, to the trial court's interpretation and application of the law. State v. Brown, 118 N.J. 595, 604 (1990).

The Law Division found that defendant physically interfered with Morey's investigation by repeatedly failing to obey Morey's orders to stay back. The court stated:

[T]he evidence is sufficient for the court to conclude that this defendant refused to obey a verbal instruction or instructions by Officer Morey. I find that he refused to obey those instructions on many occasions, whether it be four, ten or 25 times. His failure to obey caused the officer to move the defendant away from the other people and prevented him from being able to investigate the incident.

. . . .

I find that the defendant's behavior in repeatedly ignoring the request of Officer Morey to stay back, so he can investigate was sufficient to constitute physical interference. This physical interference prevented the sergeant from performing his duties and, therefore, it was an obstruction of the administration of law. Based upon all the evidence, I find that the defendant has violated the statute and is guilty of obstruction.

Defendant challenges both the factual finding that he failed to obey Morey's orders to stay back and the legal conclusion that this failure amounted to physical interference. He argues that because Detective Cahill testified that Morey was not attempting to move toward Vasquez and Riley when Cahill arrived on the scene, the State failed to prove physical interference. The State counters that Cahill arrived after Morey and did not witness all that occurred in Morey's attempts to speak with Vasquez and Riley. In addition, Cahill testified that he thought Morey was trying to prevent defendant from contact with Riley and Vasquez because defendant was yelling and screaming in the middle of the street.

The municipal court acknowledged that there were "some inconsistencies by the police officers." Nonetheless, the court found that "generally speaking, the officers testified in a truthful manner and I think therefore are believable." The court found that defendant's testimony was "less than credible[,]" which was demonstrated by the "manner in which he gave his testimony," specifically an incident in the courtroom where he threw a document and argued on a personal level with the prosecutor.

The Law Division also found that the officers' testimony was credible, in particular Morey and Cahill. The court found that the testimony of Riley and Vasquez "wasn't exactly the same, but it was pretty close to this defendant." As to defendant, the court found that "he was officious. I find that he was obnoxious. I don't believe a word he said. How he got hurt, I have no idea. I don't believe him. I don't believe him as to what happened that night. I just don't believe him. [The municipal court judge] didn't believe him. I find that he interfered."

We defer to the trial courts' credibility findings and determination that defendant repeatedly failed to stay back when Morey requested that he do so. There was sufficient, credible evidence for the trial courts to make that factual determination.

Furthermore,

[T]he rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues . . . . [A]ppellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Locurto, supra, 157 N.J. at 474.]

Defendant also makes a legal argument that failure to obey an officer's orders to stay back does not amount to physical interference. The statute, N.J.S.A. 2C:29-1a, does not require physical contact, but it does require obstruction by physical conduct. See State v. Camillo, 382 N.J. Super. 113, 121-22 (App. Div. 2005); see also State v. Berlow, 284 N.J. Super. 356, 360 (App. Div. 1995) ("[D]efendant must have affirmatively done something to physically interfere or place an obstacle to prevent the police from performing an official function.").

It follows that "mere refusal to follow a police officer's order" without a "physical act" is insufficient for a conviction of obstruction. Camillo, supra, 382 N.J. Super. at 120. But see State v. Brennan, 344 N.J. Super. 136, 143 (App. Div. 2001) ("[I]f the police are performing a law enforcement function in an appropriate manner, i.e., not with an excessive use of force, then a citizen is obligated to comply with the directions of the police. Failure to do so can result in a number of offenses, including obstruction, N.J.S.A. 2C:29-1 . . . ."), certif. denied, 171 N.J. 43 (2002). In Camillo, defendant refused to give a State Trooper his name, date of birth, and social security number. 382 N.J. Super. at 116-17. This court held that there was no physical act to support his conviction for obstruction. Id. at 121-22.

The physical conduct required by the statute, however, need not be specifically directed at the police officer, and no physical contact need be proven. Cf. State v. Lashinsky, 81 N.J. 1, 7-9 (1979) (interpreting predecessor statute). For example, failure to stop at the directive of a police officer, State v. Doss, 254 N.J. Super. 122, 130-31 (App. Div.), certif. denied, 130 N.J. 17 (1992), and failure to leave the scene as ordered by a police officer, State v. Hernandez, 338 N.J. Super. 317, 323-24 (App. Div. 2001), constitute physical acts for purposes of proving obstruction. Camillo, supra, 382 N.J. Super. at 120-21.

Moreover, defendant's failure to stand back and his repeated close approaching of Sergeant Morey were in fact directed at the officer, and they interfered with the officer's ability to investigate the incident. Defendant not only disobeyed Sergeant Morey's repeated requests to stand back but he physically continued to follow Morey as he attempted to speak to the other officers. These facts are distinguishable from the facts of Camillo, supra, where the defendant merely refused to comply with the officer's requests for information.

In sum, we conclude that defendant's refusal to obey Sergeant Morey's orders to stand back and his repeated close following of Morey constitute physical interference within the meaning of N.J.S.A. 2C:29-1a.

We have considered but reject defendant's several additional arguments as lacking sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

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A-0615-09T4

August 3, 2010