STATE OF NEW JERSEY v. EARL C. WHALEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2189-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL C. WHALEY,

Defendant-Appellant.

____________________________________________

May 2, 2011

Argued April 5, 2011 - Decided

Before Judges Yannotti and Roe.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-10-3334.

Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, L.L.C., attorneys; Mr. Loughry, on the brief).

Patrick D. Isbill, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Isbill, of counsel and on the brief).

PER CURIAM

In a non-jury trial, defendant, Earl Whaley, was convicted of third degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1(b)(5)(1); fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a); and third degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a). Defendant appeals his conviction and the denial of his motion for a new trial. We affirm.

On August 25, 2008, Collingswood Police Officer Brian Eidmann was patrolling the Borough of Woodlynne around 1:00 a.m. when he observed "[l]oud noise [and] beer bottles being thrown" on the screened in porch of a row home later identified as defendant's residence. Eidmann circled the block once or twice hoping the noisemakers would notice him and quiet down. When no change in the noise level occurred, he decided to approach the porch.

Upon approaching the porch, Eidmann saw four or five people and told them "collectively" to quiet down because he had heard complaints about noise in the area. He admitted at trial that while there had not actually been complaints, in his experience people are more likely to stop being noisy if they feel that they are bothering their neighbors than if they are ordered to cease by an officer.

According to Eidmann, the group on the porch "continue[d] doing what they were" doing and defendant "started to get aggravated and started his verbal abuse in regards to using profanity." Specifically, Eidmann stated that defendant told him to "go about [his] fucking business" three times, to which Eidmann reiterated his statement to keep it down and began to walk back to his patrol car. He continued to curse at Eidmann, who determined that it was necessary to arrest defendant for disorderly conduct.

Per standard protocol, Eidmann informed Central Communications that he would be making an arrest. He testified he was "[a]bsolutely" within earshot of defendant when he made that communication. He "calmly opened up the door" to the porch, moved behind defendant's chair and advised him that he would be placing him under arrest. Defendant continued to play cards, ignoring Eidmann's statement that he was under arrest so Eidmann pulled the chair out from under him to "execute the necessary amount of force to get his attention." Defendant did not fall to the ground but instead "stood up and took like an antagonistic stance."

When Eidmann asked defendant to turn around, defendant complied but when Eidmann grabbed defendant's right hand, defendant turned around and pushed Eidmann twice. Eidmann struck defendant "in the face with a closed fist[,]" at which point defendant "began flailing" and struck Eidmann in "the back of the head with a closed fist" multiple times. Defendant pushed Eidmann into the screen surrounding the porch, which tore. Eidmann regained his balance, and the two continued to struggle together until they fell down the stairs. Eidmann testified that defendant continued to strike and kick him while he was on the ground before fleeing the area. Eidmann tried to chase him but fell to the ground and blacked out. The officer was treated for lacerations to his right elbow and transported to Lady of Lourdes Hospital.

Eidmann stated that he was wearing an audio transmitter during the altercation. This audiotape was played for the court. On cross-examination, Eidmann admitted that the tape reflected that he did not immediately advise defendant he would be placed under arrest, but instead asked defendant to stand up twice before pulling the chair away and only then told defendant he was under arrest. At that point, defendant held out his hands and told Eidmann to handcuff him. Eidmann also admitted that though he testified before the grand jury that defendant hit him first, he hit defendant after defendant pushed him.

Frank A. Bethea, who was present on the porch that night, testified of his recollection of the events. He stated that Eidmann came up on the porch and "a few words went back and forth" before Eidmann entered through the door and "snatched the chair from under" defendant. He recalled Eidmann asking them to keep the noise level down and hearing defendant tell Eidmann to get off the porch.

Defendant testified on his own behalf. His version of the night differed substantially from Eidmann's. Defendant stated he was still on the sidewalk when Eidmann left the car and that he told Eidmann that he had "better not come up" to the porch. He denied there was any laughing, joking or "chitchat" going on between them. Defendant maintained that after Eidmann came onto the porch and ordered him to stand up, he leaned forward and began to comply when Eidmann grabbed the chair out from under him. Defendant denied pushing Eidmann but admitted that he held out his hands and invited Eidmann to handcuff him. He stated Eidmann grabbed him by the neck and tried to throw him toward the table. Defendant then told Eidmann to get his hands off of him and refused to turn his back on Eidmann because he wanted to be handcuffed in the front.

At that point, defendant stated Eidmann punched him in the face. Defendant conceded he "might have swung back with his right hand." They began to grapple with each other. At trial, defendant denied he ever heard Eidmann tell him he was under arrest, though he admitted hearing it on the tape. Defendant also stated that he and Eidmann fell down the porch stairs together, but denied that it was his intention to resist being arrested. He also denied kicking or punching Eidmann while he was on the ground. Defendant stated that after running away he returned to the police station roughly nineteen hours later after seeking legal advice because he didn't want to be arrested, he wanted to take care of some things before he turned himself in and he didn't feel safe.

Defendant waived his right to a jury trial and the case proceeded as a three day bench trial. In a written opinion issued June 22, 2009, the court found defendant guilty of one count of aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1(b)(5)(a), and two counts of resisting arrest, contrary to N.J.S.A. 2C:29:2(a).

On August 21, 2009 the court denied defendant's motion for a new trial and sentenced defendant on each count to a term of one year noncustodial probation, to run concurrently. The court also imposed appropriate fines and penalties and ordered defendant to forfeit his employment at the Camden County Jail.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE POLICE OFFICER'S CONDUCT DOES NOT SATISFY THE STANDARD OF "OBJECTIVE GOOD FAITH"

POINT II

THE ABSENCE OF REASON TO DETAIN AND TO ENTER THE PORCH CLEARLY VIOLATED THE FOURTH AMENDMENT, AN ADDITIONAL REASON FOR FINDING AN ABSENCE OF GOOD FAITH.

POINT III

THE ABSENCE OF FINDINGS ON CRITICAL ISSUES SHOWS THAT THE COURT'S ULTIMATE FINDINGS OF FACT - VERDICTS OF GUILT ON THE INDICTABLE CHARGES-DO NOT REST ON SUBSTANTIAL CREDIBLE EVIDENCE.

POINT IV

THE COURT'S SPECIFIC FINDING THAT EIDMANN SHOULD BE EXCUSED FROM COMPLIANCE WITH THE REQUIREMENTS OF 2C:3-7(b) AND LAWFUL APPLICATION OF FORCE UNDER 2C:3-7 FIND NO SUBSTANTIAL SUPPORT IN THE RECORD, AND IN FACT THE EVIDENCE CONTRADICTS THAT FINDING.

POINT V

THE COURT'S REJECTION OF THE SELF-DEFENSE CLAIM INVOLVED UNSUPPORTED FACTUAL FINDINGS, UNSUSTAINABLE CREDIBILITY DETERMINATIONS AND IMPROPER APPLICATION OF THE LAW OF JUSTIFICATION; ULTIMATELY THE COURT'S REJECTION OF THE SELF-DEFENSE CLAIM LACKS SUBSTANTIAL EVIDENCIARY SUPPORT, AS DO THE COURT'S FINDINGS ON CREDIBILITY.

I.

Defendant contends the court's findings of fact and the dismissal of the disorderly persons charge do not support the court's conclusion that Eidmann acted with the requisite "objective good faith" required by State v. Crawley, 187 N.J. 440 (2006), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L.Ed 2d, 563 (2006). We disagree.

After a three day trial, the court issued a detailed twenty four page written decision including factfinding and credibility assessments of all witness. In relying on Crawley, supra, 187 N.J. 440, the trial court laid out the applicable law, reasoning that a citizen may not resist an arrest even where such arrest is ultimately determined to be illegal so long as the arresting officer was "lawfully performing an official function[,]" as used in N.J.S.A. 2C:29-1(a). The court construed this phrase from Crawley to mean an officer acting in objective good faith, or with "honesty and belief or purpose" or "faithfulness to one's duty or obligation." In applying the law to this case, the court concluded that the State proved defendant was aware that Eidmann was a law enforcement officer acting in the performance of his duties, disproved defendant's claim that his conduct was a product of justifiable self-defense and that Eidmann was acting in good faith notwithstanding his failure to inform defendant of the grounds for arrest because his ability to do so "was taken away from him by defendant's aggressive resistance."

This court owes no deference to the trial court's interpretation of the law, or the legal consequences that flow from established facts, Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "Thus, the trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review." Haven Sav. Bank v. Zanolini, 416 N.J. Super. 151, 162 (App. Div. 2010).

Under N.J.S.A. 2C:29-2(a)(1), "a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." The offense is a crime of the third degree if a person "[u]ses or threatens to use physical force or violence against the law enforcement officer or another" or "[u]ses any other means to create a substantial risk of causing physical injury to the public servant or another." N.J.S.A. 2C:29-2(a)(3)(a)-(b). Moreover, "[i]t is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance." N.J.S.A. 2C:29-2(a).

Therefore, "[b]y the express terms of the statute, a person has no right to resist arrest by flight or any other means, even if the arrest constitutes an unreasonable seizure under the [C]onstitution." Crawley, supra, 187 N.J. at 453. Though the Court in Crawley actually considered N.J.S.A. 2C:29-1, New Jersey's "obstructing statute" under N.J.S.A. 2C:29-1, it determined that N.J.S.A. 2C:29-2 was a "sister statute," either by "express language or by judicial construction[.]" Crawley, supra, 187 N.J. at 455. Accordingly, "[f]or compelling public safety reasons, the resisting arrest, eluding, and escape statutes and interpretive case law require that a defendant submit to an illegal detention and that he take his challenge to court." Ibid. A suspect who is a subject of a potential arrest "is not privy to the information motivating the police action[,]" and thus, is "in no position to challenge the information possessed by the police" and "cannot be the judge of his own cause and take matters into his own hands and resist or take flight." Id. at 459.

In referencing the requirement under N.J.S.A. 2C:29-1 that an officer be "lawfully performing an official function[,]" the court construed this term "to mean a police officer acting in objective good faith, under color of law and the execution of his duties." Id. at 460. Thus, it can be assumed that the similar requirement in N.J.S.A. 2C:29-2 that an officer be acting "under color of [his official authority]" means that an officer must also act in an objective good faith manner. See Crawley, supra, 187 N.J. at 460. The court defined objective good faith as "'honesty in belief or purpose' and 'faithfulness to one's duty or obligation.'" Crawley, supra, 187 N.J. at 461(n)8 (quoting Black's Law Dictionary, 701 (7th Ed. 1999)).

Defendant disputes that Eidmann was acting in objective good faith, hinging his argument on free speech principles, claiming that he "violated no law[,]" because his "insulting manner of speaking...was not criminal" and Eidmann's decision to arrest him was "objectively arbitrary and unreasonable." We are satisfied the court's finding that Eidmann was acting in objective good faith is supported by the record.

In Crawley, officers attempted to question the defendant because they had received a dispatch from headquarters that he was carrying a firearm. Crawley, supra, 187 N.J. at 444. They were forced to chase defendant and subdue him when he tried to run away. Id. at 444-45. Defendant challenged the officers' actions, claiming that they were not "lawfully performing an official function" because they did not have reasonable suspicion. Id. at 446. In holding that the officers' actions satisfied the objective good faith requirements, the court noted that they had "reasonably relied" on the dispatch from headquarters and attempted to question the defendant. Id. at 462. The court saw "nothing unreasonable about the steps taken" and noted that a "failure to act" in this situation would have constituted dereliction of duty. Ibid.

Here, Eidmann approached defendant and his friends and asked them to be quiet. According to Eidmann, the group ignored him. Defendant then exhibited increased agitation and verbal profanity. As a result, Eidmann resolved to arrest defendant for disorderly conduct. Though the parties disputed the exact words used by defendant and Eidmann, defendant admitted at trial that he "might have" swung at Eidmann, that he invited Eidmann to handcuff him and that the tape revealed that Eidmann informed defendant that he was under arrest.

Notwithstanding defendant's testimony at trial that the group was not making noise, defendant does not dispute the court's finding that Eidmann's conduct in approaching the porch and asking the group to quiet down at 1:00 a.m. was consistent with his duties as a police officer. Moreover, Eidmann's instructions to defendant to quiet down were reasonable in the situation and defendant had a duty to obey them. In State v. Lashinsky, 81 N.J. 1, 11 (1979) our Supreme Court reasoned:

[W]here an officer's instructions are obviously reasonable, in furtherance of his duties, an individual toward whom such instructions are directed has a correlative duty to obey them. If his refusal to respond results in an obstruction of the performance of the officer's proper tasks, this will constitute a violation of the disorderly persons statute.

[(internal citation omitted)].

As the record supports a finding that defendant failed to obey Eidmann's instructions, the officer's decision to arrest defendant for violation of the ordinance was reasonable at the time, notwithstanding any later decision by the court as to the violation of the disorderly persons ordinance. Crawley, supra, 187 N.J. at 460-61.

In Crawley, the court noted that "the important public policy of discouraging self-help" recognizes that "resisting arrest greatly increases the likelihood of physical harm to both the arresting officers and the suspect, as well as to innocent bystanders." Crawley, supra, 187 N.J. at 453-54. Here, defendant's resistance led to a fistfight causing both parties to tumble down the stairs which then resulted in Eidmann's arm injury. The injury sustained by Eidman when defendant resisted arrest is precisely the result which the statute and the public policy concerns underlying the decision in Crawley, seek to prevent.

II

We disagree with defendant that Eidmann's entrance onto his porch violated the Fourth Amendment and therefore demonstrates that his conduct violated objective good faith principles.

The Fourth Amendment to the United States Constitution protects "[t]he right of the people to secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. Our State Constitution also protects our citizens from unreasonable searches and seizures. N.J. Const. art. I, 7. Accordingly, "[t]he home is entitled to particular protection from unwarranted intrusion because 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" State v. Davila, 203 N.J. 97, 112 (2010). Where the interest in entering the home is "to arrest for a minor offense," a presumption of unreasonableness attaches, which "is difficult to rebut[.]" State v. Jones, 143 N.J. 4,15 (1995)(quoting Welsh v. Wis., 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732, 743 (1984)). In these circumstances, such arrests should only move forward with a validly-executed warrant. Ibid.

Defendant correctly characterizes his porch as included in constitutionally-protected curtilage adjacent to the home under the right circumstances. State v. Domicz, 188 N.J. 285, 302 (2005)("whether the Fourth Amendment safeguards an area of curtilage depends on a consideration of various factors, including '[w]hether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.'")(quoting U.S. v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35 (1987)). Thus Eidmann's conduct entering Whaley's screened in porch without permission was an area protected by the Fourth Amendment and the comparable provision of our State Constitution. U.S. Const. amend. IV; N.J. Const. art. I, 7. See Jones, supra, 143 N.J. at 15.

Even assuming Eidmann's conduct violated the Fourth Amendment, defendant's reliance on such constitutional violation as a basis to appeal his conviction for resisting arrest is misplaced. By the statute's express terms, "[i]t is not a defense to a prosecution [for resisting arrest] that the law enforcement officer was acting unlawfully in making the arrest" so long as the officer acts under the color of his official authority and announces his intention to arrest prior to the resistance. N.J.S.A. 2C:29-2(a); State v. Casimono, 250 N.J. Super. 173, 183 (App. Div. 1991)(finding state trooper's violation of the Fourth Amendment in patting down a suspect did not preclude conviction for resisting arrest under N.J.S.A. 2C:29-2(a)), certif. denied, 127 N.J. 558 (1992). Here, Eidmann was acting under color of his official authority because he was on duty and asked defendant and his friends to quiet down at 1:00 a.m. Defendant admitted that the audiotape reveals that Eidmann told him he would be under arrest if he did not obey.

Similarly, with regard to his aggravated assault conviction, this court has held that a break in the causal chain between the alleged police misconduct and the offense will preserve the conviction. State v. Lee, 381 N.J. Super. 429 (App. Div. 2005)("[W]e also disfavor resistive and threatening conduct by a person unlawfully stopped or detained against the offending police officers. No good public purpose is served by ignoring or rewarding such antisocial acts."), rev'd on other grounds, 190 N.J. 270 (2007); Casimono, supra, 250 N.J. Super. at 183. Defendant does not deny hitting Eidmann after the officer announced his intention to arrest.

There is sufficient credible evidence for the court's finding that Eidmann acted in good faith when he approached defendant and placed him under arrest. Under Crawley defendant was obligated to comply with the officer's directions and not resist arrest, regardless of whether the arrest was lawful.

III.

Defendant contends the trial court's factfinding is deficient on critical issues of why Eidmann entered the porch and whether he had any sufficient justification for the use of force. Defendant argues the absence of these findings merits reversal because it shows that defendant broke no laws undermining the court's finding of fact regarding defendant's guilt. We reject these arguments as the trial court's detailed findings of credibility and fact are clearly supported by the record.

In reviewing the record and the audiotape, the trial court acknowledged that "several instances of inconsistent statements were revealed from both the arresting officer...as well as from the defendant." The court weighed these inconsistencies and found that Eidmann "generally present[ed] to the court sufficient, competent and credible testimony" indicating the following: Eidmann "was met with immediate resistance by defendant" when he asked him to quiet down; Eidmann told defendant to quiet down or else he would be "locked up;" when defendant refused to comply, Eidmann "informed police dispatch...that he intended to take an individual into custody;" Eidmann told defendant to stand up twice and then, that defendant was under arrest; defendant refused to turn around when asked to do so by Eidmann; defendant moved toward Eidmann whereupon Eidmann struck him in the face; and a fight ensued between the two. Ultimately defendant fled the scene.

Contrary to defendant's claims, in reviewing the factfinding of a trial judge sitting without a jury, this court is not free "to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Where a trial court makes credibility determinations, this court "should give deference to those findings of the trial court which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case[.]" Id. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Defendant's position that the court's opinion was silent on the issue of Eidmann's justification for going on the porch and that Eidmann's decision to arrest defendant was due to his continuing to curse at Eidmann is misplaced. Defendant again fails to note that N.J.S.A. 2C:29-2(a) explicitly provides that the unlawfulness of the arrest is not a defense to a charge of resisting arrest. Moreover, "an illegal detention or search ordinarily will not bar a conviction for an assault, escape or other unlawful response committed by the person subjected to the unlawful police action." Casimono, supra, 250 N.J. Super. at 183 (noting that a defendant's act of resisting arrest after an unlawful pat down by police constituted "intervening [events]" that "were not subject to the taint of that police misconduct"). Once the court determined Eidmann complied with all of the requirements of N.J.S.A. 2C:29-2(a), the officer's reasons for arresting defendant were irrelevant.

Similarly, defendant's claims that Eidmann's articulated reason that he pulled the chair away because defendant ignored his request to stand up was unsupported by the record is without merit. The record supports the court's finding that Eidmann was acting in objective good faith under color of his official authority.

We find the record contains "adequate, substantial and credible evidence" to support the trial court's findings that "defendant did purposely prevent Eidmann from effecting the arrest by engaging in a physical altercation and thereafter fleeing the scene and purposely avoiding his detection and apprehension by sleeping in his car." State v. Locurto, 157 N.J. 463, 470-75 (1999). In fact, defendant admitted that "he might have" swung at Eidmann, that they grappled, that he refused to turn around to allow Eidmann to cuff him and that he ran away.

IV.

Defendant maintains the court erred in finding that Eidmann qualified for the privilege of using force in the arrest under N.J.S.A. 2C:3-7(b) and second, that defendant knew Eidmann was arresting him and the purpose for the arrest. Defendant contends these findings have no support in the record which requires reversal of defendant's convictions.

The court found that "defendant refused to comply with Eidmann's directives by refusing to place his hands behind his back or head so that Eidmann could handcuff him" and "recklessly conducted himself in such a manner that Eidmann had to use physical force in an effort to effect the arrest." Moreover, the court found that defendant knew that Eidmann was acting in the performance of his duties and "although the audio recording...does not reveal Eidmann formally advising defendant of the grounds for his arrest...the reality of the situation was that the events took place so quickly due to defendant's resistive conduct, Eidmann was essentially precluded from a strict formal adherence to the requirement to convey declaration of the grounds for arrest." Under N.J.S.A. 2C:3-7(a), "the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor reasonably believes that such force is immediately necessary to effect a lawful arrest." This is not justifiable unless the officer "makes known the purpose of the arrest or reasonably believes that it is otherwise known by...the person to be arrested[.]" N.J.S.A. 2C:3-7(b)(1)(a). Thus, the two requirements of this statute are (1) the use of the force must be necessary to effect the arrest and (2) the officer must either advise the defendant of the purpose of the arrest or reasonably believe that the defendant already knows.

Defendant argues Eidmann's use of force was not justifiable under N.J.S.A. 2C:3-7(a) as the initial excessive use of force was the "ripping" of the chair away from him when his conduct to this point did not necessitate the use of force. The trial court's findings to the contrary are well supported in the record. It is clear defendant did not stand up when ordered and additionally used profane language towards Eidmann. Moreover, after the movement of the chair, defendant admits that he refused to turn around so Eidmann could handcuff him and that he "might have" swung at Eidmann. There is sufficient evidence in the record to support the court's conclusion that some use of force in effectuating the arrest was necessary and not excessive.

There is also sufficient evidence in the record to support the trial court's conclusion that the defendant had knowledge of the purpose of the arrest. Defendant admitted that he "assumed" Eidmann was putting him under arrest when he heard Eidmann call dispatch before entering the porch. The tape reveals Eidmann advising defendant that he was under arrest and defendant admitted to holding his hands out, asking Eidmann to cuff him. Defendant also stated he ran away because he suspected he would be arrested. We disagree with defendant that he did not know he was under arrest or why, as shown by the statements made during his interrogation.

V.

Defendant contends that because Eidmann allegedly had no reason to arrest him from the onset and initiated the use of force against defendant without provocation, that defendant's self-defense claim should have prevailed. We disagree.

The trial court plainly noted inconsistencies in both Eidmann and defendant's statements. With respect to Eidmann, it noted: (1) that Eidmann incorrectly testified before the grand jury that he told defendant he was under arrest before he pulled the chair away, (2) that, contrary to his trial testimony, the audiotape indicated that he did not tell defendant he was under arrest "well before" the chair was pulled away; but rather within seconds of each other; (3) that there were no noise complaints; and that (4) he admitted during the trial that defendant never said "fuck you." With regard to defendant, the court noted: (1) defendant conceded that Eidmann never told him he had to end the party; (2) he admitted at trial that Eidmann never complained of defendant's "smart mouth;" (3) that the audiotape contradicted his claims that he was not disrespecting the officer. The court found Eidmann was credible notwithstanding any inconsistencies.

On the self-defense charge, the court noted that a citizen may use self-defense to protect himself from unreasonable force. In applying this law to the facts of the case, the court first noted that it did not find that Eidmann used excessive force. Moreoever, it was "satisfied that the State has proven beyond a reasonable doubt that defendant neither reasonably believed that the use of force was immediately necessary nor that defendant reasonably believed that he was using force to protect himself."

A private citizen generally may not use force against an authorized police officer acting in the course of his or her duties and under the color of the law. N.J.S.A. 2C:29-2(a); Crawley, supra, 187 N.J. at 453-54. However "[i]t is well settled that an officer effecting an arrest may use only such force as is reasonable under the circumstances and that if the officer uses excessive or unnecessary force 'the citizen may respond or counter with the use of reasonable force to protect himself.'" State v. Simms, 369 N.J. Super. 466, 472 (App. Div. 2004)(quoting State v. Mulvihill, 57 N.J. 151, 156 (1970)). Two qualifications exist on this right: (1) a citizen cannot use more force in protecting himself than reasonably appears necessary and (2) "he loses his privilege of self-defense if he knows that if he submits to the officer, the officer's excessive use of force will cease. And, of course, the citizen must reasonably believe that the use of force is necessary to protect himself from the officer's excessive use of force." Ibid. N.J.S.A. 2C:3-4(a).

We have explicitly determined that the distinction of "whether the initial force of the arresting officer was illegal or not" is "immaterial." State v. Villanueva, 373 N.J. Super. 588, 599 (App. Div. 2004). Rather, the emphasis is properly "on the degree of force exerted in relationship to the goal of effecting an arrest." Ibid. Thus, the focus here is not on whether Eidmann's initial use of force against defendant was illegal, but rather on what amount of force he used.

Defendant also takes issue with the trial court's decision to characterize Eidmann's testimony as credible, notwithstanding inconsistencies and argues that this error in credibility undermines the verdict. While this court must "review the record in light of the contention" that the trial court erred, it should not do so "initially from the point of view of how it would decide the matter if it were the court of first instance." Locurto, supra, 157 N.J. at 471 (quoting Johnson, supra, 42 N.J. at 161). Rather, this court must "determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record;" if so, it "should not disturb the result" even if it "might have reached a different conclusion were it the trial tribunal." Ibid. (quoting Johnson, supra, 42 N.J. at 162).

There is sufficient credible evidence to support the trial court's findings that Eidmann's use of force was not disproportional or excessive under the circumstances, even taking into account inconsistencies at trial. Defendant does not dispute that he was told he would be arrested if he did not comply with Eidmann's order to quiet down. It is equally uncontroverted that defendant was told to stand up, and, in fact, was not injured from the removal of the chair. He does not deny that he moved towards Eidmann or refused to turn around so that Eidmann could handcuff him, or that he "might have" struck Eidmann. All of these actions and findings support the trial court's conclusion that Eidmann's use of force was, in fact, reasonable and not excessive, which would prohibit Eidmann from using force at all. Crawley, supra, 187 N.J. at 453-54; Simms, supra, 369 N.J. Super. at 472.

There is also sufficient evidence in the record to support the trial court's conclusion that defendant did not "reasonably believe" that force was necessary to protect himself. Simms, supra, 369 N.J. Super. at 472; N.J.S.A. 2C:3-4(a). Though Eidmann testified that defendant was not trying to escape custody, defendant later admitted that he believed he would be put in jail and wanted to "take care of some things." Defendant also admitted that he refused to turn around because he wanted to be handcuffed in front. These statements support the trial court's conclusion that defendant was not, in fact, afraid for his life, but rather that he "actually wanted to dictate the terms of how he would be placed under arrest."

A