STATE OF NEW JERSEY v. SHARON A. SHUMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3411-08T43411-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHARON A. SHUMAN,

Defendant-Appellant.

______________________________________

 

Submitted June 2, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-11-2600.

Bosco, Bisignano & Mascolo, LLP, attorneys for appellant (John Bosco, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

During a routine motor vehicle stop, defendant Sharon Shuman was arrested and charged with third-degree aggravating assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3). After indictment and a trial by jury, defendant was found not guilty of those charges but guilty of the lesser-included disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a(1). The court sentenced defendant to a one-year probationary term and assessed appropriate fines and penalties.

On appeal, defendant has raised the following arguments:

POINT I THE RECORD IS BARREN ON ANY PRE-ARREST CONDUCT THAT CAN SERVE AS A PREDICATE FOR A N.J.S.A. 2C:29-2(a)(1) CONVICTION AND, WITHOUT ANY EVIDENCE IN THE RECORD TO SUPPORT THE CONVICTION, THE CONVICTION MUST BE SET ASIDE.

POINT II THE JURY'S VERDICT OF ACQUITTAL ON TWO COUNTS BASED ON DEFENDANT'S POST ARREST CONDUCT AND A CONVICTION ON ONE COUNT BASED ON DEFENDANT'S PRE-ARREST CONDUCT IS ILLOGICAL, INCONSISTENT AND CANNOT STAND.

POINT III THE JURY WAS NOT PROPERLY INSTRUCTED ON WHAT CONDUCT COULD SERVE AS A PREDICATE FOR A N.J.S.A. 2C:29-2(a)(1) CONVICTION AND WHAT CONDUCT COULD NOT AND, BECAUSE OF NOT BEING PROPERLY INSTRUCTED, IMPERMIS-SIBLY BASED THEIR N.J.S.A. 2C:29-2(a)(1) CONVICTION UPON POST ARREST CONDUCT.

POINT IV THE PROSECUTION FAILED TO PROVE THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT AS A MATTER OF LAW.

POINT V THE SENTENCE WAS ILLEGAL TO THE EXTENT THAT IT IMPOSED AS A CONDITION THE REQUIREMENT OF DNA SAMPLING FOR A DISORDERLY PERSONS OFFENSE.

We reject the arguments in Points I through IV and affirm the jury's verdict. We remand, however, for correction of the Judgment of Conviction to remove the requirement that defendant provide a DNA sample.

Defendant argues broadly in a single sentence of her brief that the State failed to prove beyond a reasonable doubt that she was guilty of disorderly persons resisting arrest. The testimony of defendant conflicted with the testimony of the arresting officer, but the jury had ample evidence to find defendant guilty of resisting arrest.

The officer testified that at 10:40 a.m. on August 10, 2007, while on-duty in a marked police vehicle, he observed defendant's car at a traffic light and called in the license plate for a registration check. He received a response that the license plate was not on file. Based on this information, the officer made a motor vehicle stop to check the registration and credentials for the car.

The officer approached defendant's car and asked her for credentials. Defendant asked why she had been stopped. The officer said he would answer her questions after she produced her driver's license, registration, and insurance card. Upon receiving the credentials, the officer asked his headquarters to check the vehicle identification number and defendant's driver's license number. Headquarters responded that the vehicle identification number matched the corrected license plate but that defendant had two outstanding warrants for her arrest.

The officer told defendant that she had two outstanding warrants and that he was placing her under arrest. He asked her to step out of the car. Defendant said nothing, kept her eyes forward, and put her hand out the window. The officer again told defendant to step out of the vehicle and that she was under arrest. Defendant responded that she wanted her credentials back so that she could leave. The officer told defendant she was not free to leave and that he would transport her to headquarters where she would be permitted to make phone calls to post bail. Defendant picked up her cell phone and said she was calling her lawyer. The officer told defendant that if she did not step out of the car and submit to the arrest, she would face additional criminal charges for obstruction.

Defendant stepped out of her car while talking on her phone. The officer asked defendant to place her hands behind her back, but defendant ignored him. The officer asked her a second time to put her hands behind her back. Defendant eventually put her hands behind her back while still on her phone. However, as the officer was placing handcuffs on defendant, she broke away and began walking toward the road.

The officer ordered defendant to stop and grabbed her shoulder with his right hand. Defendant spun around very quickly and screamed, "Don't you f***ing touch me." According to the officer, she lunged at him and rammed into his chest with her shoulder. As the officer tried to secure her against his patrol car, defendant continued to scream and flailed her body back and forth, trying to escape the officer's grasp.

The officer called for backup as he tried to lock the handcuffs around defendant's wrists. He testified that defendant grabbed his crotch and squeezed hard. The struggle continued, with defendant again attempting to grab the officer's groin, until the officer grasped defendant by her shirt and throat and pushed her against the hood of the patrol car. He was finally able to subdue defendant and get her into the back of the car, at which point backup arrived.

At police headquarters, defendant asked to go to the hospital. An ambulance was summoned and defendant was transported to the hospital.

Defendant testified at trial that the officer was very belligerent during the incident. She testified that "getting pulled over, that's kind of the norm for me. They usually give a little bit of attitude with their asking for credentials. It's very seldom I have an officer that's being polite to me." Defendant testified that after the officer informed her that her license plate had come back invalid, she made a call to a detective she knew. According to defendant, when the officer told her she had two outstanding arrest warrants, she did not believe him because she had been pulled over for speeding two months earlier and the warrants had not surfaced then.

Defendant testified that as she was attempting to gather her belongings to step out of the car, the officer "snatched open the door and tried to drag me out of the car." She felt that the officer was harassing her. She said she immediately put her hands behind her back when the officer started to handcuff her, but her phone rang, and the officer told her to answer it. While defendant was on the phone, the officer grabbed the phone from her hand, and it fell to the ground. She tried to pick it up when the officer "c[a]me running over, and he snatched the cuffs and dragged me, and then he took [the phone] and started to choke me." Defendant testified that the officer "slammed me up against the hood of the car." She claimed the officer injured her hands and wrists.

Defendant denied grabbing at the officer's crotch. She stated that at all times she complied with the officer's requests and did not resist his efforts to arrest her. She said that if there was any struggle or resistance on her part it was to avoid pain in her finger, which she said was hurt by the officer.

In addition, to the testimony of the officer and defendant, the jury heard recorded radio transmissions of the incident.

"It is within the sole and exclusive province of the jury to determine the credibility of the testimony of a witness." State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). In determining whether the prosecution established all elements of the offense beyond a reasonable doubt, the court must view the evidence favorably to the prosecution, including all favorable inferences that can reasonably be drawn from the evidence. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Taccetta, 301 N.J. Super. 227, 240-41 (App. Div.), certif. denied, 152 N.J. 187 (1997). Here, the jury credited at least some parts of the officer's testimony regarding what occurred. The evidence was more than sufficient for the jury to find defendant guilty of resisting arrest.

The main thrust of defendant's appeal is an illogical argument that the charge of resisting arrest cannot be based on conduct that occurred after the police officer told her that he was placing her under arrest for outstanding warrants. A person is guilty of the disorderly person's offense of resisting arrest if she "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(1). Four elements must be proven to support a conviction for the offense: (1) the person making the arrest was a law enforcement officer; (2) that person was making an arrest; (3) the defendant knew that she was being arrested by a law enforcement officer; and (4) the defendant purposely prevented or attempted to prevent the officer from effectuating the arrest. State v. Simms, 369 N.J. Super. 466, 470-71 (App. Div. 2004); Model Jury Charge (Criminal), Resisting Arrest - Flight Not Alleged (2007).

Because the third element of the offense requires that defendant knew she was being placed under arrest, the officer's announcement of the arrest is often a significant part of the State's proofs. It is typically the defendant's conduct after the officer makes known his intent to make an arrest that is the basis for conviction. See, e.g., State v. Kazanes, 318 N.J. Super. 421, 424 (App. Div. 1999); State v. Liberatore, 293 N.J. Super. 580, 583-85, 588 (Law Div.), aff'd, 293 N.J. Super. 535 (App. Div. 1996).

We also reject defendant's argument that the jury's finding her not guilty on the charges contained in the indictment was inconsistent with its finding her guilty on the lesser-included offense of resisting arrest. Not only was there no inconsistency in the jury's verdict, we do not reverse a conviction supported by the evidence on the ground that it is inconsistent with acquittal on another charge. See United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932); State v. Banko, 182 N.J. 44, 55 (2004); State v. Grey, 147 N.J. 4, 11 (1996).

With respect to her sentence, defendant argues, and the State agrees, that a disorderly person's offense is not subject to the statutory requirement that a convicted defendant provide a DNA sample under N.J.S.A. 53:1-20.17 to -20.28. The Code of Criminal Justice does not classify a disorderly persons offense as a crime. See N.J.S.A. 2C:1-4(b); State v. O'Hagen, 380 N.J. Super. 133, 151 (App. Div. 2005), aff'd, 189 N.J. 140 (2007). At defendant's sentencing, the court did not mention a DNA sample. That requirement was apparently checked in error on the form Judgment of Conviction.

Defendant's conviction for disorderly persons resisting arrest is affirmed. We remand to the trial court to correct the Judgment of Conviction by removing the requirement that defendant provide a DNA sample.

 

It was later determined that the plate number was on file but the error was caused by misreading the letter "O" in the license plate as a zero.

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A-3411-08T4

August 4, 2010