STATE OF NEW JERSEY v. SHLOMO BENHAIM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3981-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHLOMO BENHAIM,

Defendant-Appellant.

_______________________________________

May 10, 2011

Submitted April 5, 2011 Decided

Before Judges Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 116-2009.

Jabin & Fleming, attorneys for appellant (Christian P. Fleming, of counsel and on the brief).

BruceJ. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The Edison Township municipal court found defendant Shlomo Benhaim guilty of leaving the scene of an accident, N.J.S.A. 39:4-129; failure to report an accident, N.J.S.A. 39:4-130; obstruction of justice, N.J.S.A. 2C:29-1(b); simple assault, N.J.S.A. 2C:12-1(a)(1); and resisting arrest, N.J.S.A. 2C:29-2(a)(1). Defendant sought de novo review by the Law Division, which found him guilty of obstruction of justice, simple assault and resisting arrest but not guilty of the other charges. Defendant was sentenced on each offense to a $200 fine, and required to pay court costs and appropriate penalties. Defendant appeals from the judgment entered by the Law Division on April 22, 2010. We affirm.

At the trial in the municipal court, David Soden (Soden), an officer in the Highland Park Police Department (HPPD), testified that on May 3, 2009, he was assigned to the HPPD's Traffic Safety Division. Soden was dispatched to a Rite Aid store located on Raritan Avenue, where he spoke with a witness, who reported an accident and gave him the number of a license plate. Soden ascertained that the number corresponded with a motor vehicle registered to defendant. Soden went to defendant's home.

A young girl, later identified as defendant's daughter P.B., answered the door and Soden asked if an adult was at home. Defendant came to the door. Soden told him that he was investigating a motor vehicle accident that occurred in the Rite Aid parking lot.

Defendant admitted that he had been operating his car at that location and backed into a pole. Soden asked defendant why he had not stopped and reported the incident to the police. Defendant said that he did not report the matter because there was not much damage to his car or the pole.

According to Soden, defendant was cordial at this point and invited him to see the car, which was in the driveway. Soden walked with defendant to the car. Soden observed very minor damage to the rear bumper, which consisted of a small dent. Defendant admitted that the damage had been caused by the impact of his car with the pole in the Rite Aid parking lot.

Soden asked defendant for his credentials, specifically his driver's license, vehicle registration and insurance card. Soden told defendant that he needed those credentials so that he could complete an accident report. Defendant produced the documents. Soden said that defendant's demeanor changed at that point. Soden testified that defendant's eyes were bloodshot and he detected the odor of an alcoholic beverage on his clothing.

Soden asked defendant whether he had consumed any alcoholic beverages that day. Defendant did not respond to that question but told Soden to get off of his property because he had no right to be there. Soden testified that he wanted to "de-escalate the situation." He viewed the matter as a traffic violation. He told defendant that he would move from the driveway to the sidewalk in front of the property.

After Soden moved to the sidewalk, defendant appeared to calm down. Soden looked at defendant's driving credentials and noticed that the insurance card had expired. Soden told defendant he required a valid insurance card. Defendant expressed anger and stated that he wanted to know why Soden was there since he had not observed the accident. Soden said that defendant became very agitated.

Defendant turned and walked back up his driveway. He made no indication that he was going to obtain another insurance card. Soden followed him up the driveway. It appeared that defendant was going to the side door of the house. Soden stated that he did not know what defendant intended to do. Soden stated that defendant then turned and pushed him in the chest with his open palms. Soden said it was a "medium to hard push" which propelled him backwards and knocked him slightly off balance.

Defendant kept walking away. Soden followed him and told defendant he was under arrest. When the defendant did not stop walking, Soden took defendant's left arm and again told defendant he was under arrest. He attempted to put defendant in an "arm bar" which he described as a physical move used to make a person comply with his demands. Soden was not able to apply the "arm bar." Soden and defendant fell to the ground and Soden was able to handcuff defendant.

Soden called for back-up but defendant continued to use physical resistance. Soden said that defendant elbowed him in the abdomen. P.B. came out of the house and pleaded with them to stop. Soden testified that he did not believe she had observed "the initial two-handed push." Other officers from the HPPD arrived on the scene, and one of the officers transported defendant to police headquarters. Defendant complained of abrasions to his leg and the first aid squad transported him to the hospital. Soden stated that he sustained an abrasion to his right leg in the incident.

Defendant testified that on the day of the incident, his daughter planned to attend a bar mitzvah party. He went with his daughter to the Rite Aid store to purchase a card for the party. After defendant exited the store, he backed up his car and he may have "tapped" the concrete "bumper" around a pole. Defendant exited the car. He did not see any damage to the concrete or his bumper. Defendant went home and took a shower.

Defendant was getting ready to go to the party when P.B. called him and said that someone was there to see him. Defendant went to the door and spoke with the police officer. He told the officer he had been at the Rite Aid, and the officer said that someone reported that he had been involved in an accident. They looked at his car.

Defendant testified that there was damage to the paint on the rear bumper but it was not the result of his impact with the concrete barrier at the Rite Aid store. He denied that there was a dent in his bumper. Defendant handed the officer all of his driving credentials, and the officer told him that he was going to have to write a summons. Defendant said, "For what?" and, according to defendant, the officer told him to "[s]hut up." The officer also said that he had an "expired registration."

Defendant told the officer to get off his property. Defendant stated that the officer struck him in the left shoulder. Defendant again told the officer to get off his property. He stated that the officer started to drag him. Defendant said the officer said he did not have a valid insurance card, and said that he would issue another summons if he did not have insurance.

Defendant went to his car to get his insurance card. He said that the officer struck him and started wrestling with him. According to defendant, the officer dragged him by his hands, "slammed" him to the ground and handcuffed him. Defendant insisted that the officer had struck him first, and he said that he never touched the officer. Defendant stated that he was "just talking" and the officer "got upset" perhaps because he told him to leave the property.

P.B. testified that she went with her father to the Rite Aid store and remained in the car while he went inside to purchase a card. As defendant was backing his car, the car struck the bumper of a pole. P.B. and defendant exited the car. She did not see any damage. They got back into the car and drove home. A police officer came to the house and she called her father to the door.

According to P.B., the officer asked her father if he had been at the Rite Aid. Defendant said that he had been there. The officer then asked defendant why he did not "register" the accident. P.B. stated that she saw her father and the officer go to the car so that her father could get his registration. She watched from the window. She saw that they were arguing "with each other a little bit."

P.B. acknowledged that she could not hear what was being said but she could tell they were arguing by their facial expressions. She stated that her father asked the officer to leave the property three times. The officer turned and hit defendant on the shoulder. She said that she did not see her father hit the officer or push him. She testified that the officer shoved her father down and put handcuffs on him. After her father had been handcuffed, the officer was still "beating him."

The municipal court judge found defendant guilty of leaving the scene of an accident; failure to report an accident; obstruction of justice; simple assault; and resisting arrest. Defendant appealed to the Law Division, which heard the matter on April 22, 2010, and on that date placed a lengthy decision on the record.

The court noted that the municipal court judge had found the officer's testimony to be more credible than that of defendant and his daughter. The court agreed with the municipal court judge's credibility findings. The court stated that it was difficult to believe that a police officer "would go crazy or act out or respond in a hostile or violent manner because somebody [told him to] get off [his] property."

The court found that defendant's version of the incident did not "seem very credible." The court also found that, while defendant's daughter recounted what she probably recalled, the court did not believe it was an accurate recollection. The court stated that P.B.'s testimony may have been an "emotional re-recreation in her mind of what she [had seen] as a [twelve-year-old] watching her father being arrested."

The court determined that the State had not proven defendant left the scene of an accident in violation of N.J.S.A. 39:4-121 because, while there had been a collision of some kind, there was insufficient evidence to show that the minimal damage to the Rite Aid property was caused by defendant's car. The court also found that the State had not proven that defendant violated N.J.S.A. 39:4-131 by failing to report an accident because the statute requires proof of damages in excess of $500. The State had not proven damages in the required amount beyond a reasonable doubt.

The court found, however, that the State presented sufficient evidence to support the charges of obstruction of justice, simple assault and resisting arrest beyond a reasonable doubt. The court determined that the State had proven obstruction of justice in violation of N.J.S.A. 2C:29-1 because defendant failed to answer questions posed by the officer in his investigation.

The court further found that the State had proven a simple assault in violation of N.J.S.A. 2C:12-1(a)(1) because the officer had testified credibly that defendant pushed him, knocked him back a few feet and wrestled with him, causing the officer to sustain abrasions to his leg. In addition, the court found that the State had proven that defendant resisted arrest in violation of N.J.S.A. 2C:29-2(a)(1) because the officer had informed defendant he was under arrest and defendant had pushed the officer and wrestled with him in an attempt to resist his arrest.

On appeal, defendant raises the following issues for our consideration:

THE COURT IMPROPERLY FOUND THE DEFENDANT GUILTY WHERE THE STATE HAD NOT PROVE[N] ITS CASE BEYOND A REASONABLE DOUBT BY IMPROPERLY GIVING UNDUE WEIGHT TO THE TESTIMONY OF A POLICE OFFICER.

Defendant contends that it was improper for the court to give more weight to Soden's testimony due to his status as a police officer. Defendant maintains that the officer's testimony should be weighed in the same manner as his testimony and that of his daughter. Defendant further argues that, in making its credibility findings, the court relied upon certain inconsistencies in his testimony while "ignoring" inconsistencies in the officer's testimony. We find no merit in these contentions.

An appellate court is required to give deference to the findings of the trial court, particularly when they have been "'substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We must defer to the findings of the trial court if we determine that they "'could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). "Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues." Id. at 474. Under this "two-court rule," an appellate court "should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

Based upon our thorough review of the record, we are convinced that there is sufficient credible evidence in the record to support the factual findings of the municipal court and the Law Division regarding the obstruction of justice, simple assault and resisting arrest charges. We are satisfied that the record fully supports the Law Division's conclusion that Soden's testimony was more credible than that of defendant and his daughter. Contrary to defendant's contention, the court did not find Soden more credible merely because he is a police officer. Rather, the court carefully assessed what Soden said about the incident and found that it was more believable than defendant's testimony as to what took place on May 3, 2009.

Affirmed.