STATE OF NEW JERSEY v. JOYCE E. MARVASI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5394-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOYCE E. MARVASI,

Defendant-Appellant.

___________________________________

May 4, 2011

Submitted October 27, 2010 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Municipal Appeal

No. 09-09.

Joyce E. Marvasi, appellant pro se.

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Linda A. Shashoua,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Joyce Marvasi was tried before the Cherry Hill Municipal Court and found guilty of two counts of the disorderly persons of offense of resisting arrest, N.J.S.A. 2C:29- 2a(1)(a), one count of the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1), and one count of the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-1(a)(1). The municipal court acquitted defendant of one count of simple assault, and imposed an aggregate sentence of a $1,000 fine, $66 in court costs, and $250 in statutory penalties.

Pursuant to Rule 3:23-2, defendant appealed to the Superior Court Law Division. After conducting a de novo review of the record developed before the municipal court, the Law Division found defendant guilty of all the charges and imposed the same sentence. Defendant now appeals to this court. We affirm.

The charges filed against defendant originate from an encounter she had with Cherry Hill Police Officers Ryan Johnstone and Marianne Carlin in the early morning hours of February 21, 2008. On this date, these officers were dispatched to defendant's residence to execute a warrant for defendant's arrest issued by the Palmyra Police Department. Cherry Hill Police Officers Kevin Guldin and Richard McLaughlin were also present in a supervisory capacity.

Johnstone and Guldin first responded to defendant's residence shortly after midnight on February 21, 2008, in response to what Johnstone characterized as "a dispute between defendant and her husband." Although the record is not entirely clear on what transpired next, it appears that the husband left the residence he shared with defendant, and decided to stay with a relative in the Borough of Palmyra. It further appears that defendant's husband filed a complaint with the Palmyra Police Department that resulted in the issuance of a warrant for defendant's arrest.

Officers Johnstone, Carlin, Guldin, and McLaughlin drove to defendant's residence to execute the arrest warrant. Defendant's eighteen-year-old son answered the door. The officers advised him that they had a warrant for his mother's arrest. Defendant's son informed them that his mother was in the basement. The officer directed defendant's son to stay upstairs while they went to the basement.

Defendant was on the telephone with a representative of the Palmyra Police Department when the officers entered the basement area. It is undisputed that defendant was intoxicated at the time and appeared to be angrily denying her husband's allegations against her. Johnstone explained to defendant that they were there to execute the arrest warrant and that she was required to comply. Despite this clear command from a uniformed police officer, defendant physically resisted the officers' attempts at restraining her with handcuffs. Johnstone gave the following description of what transpired:

While Ms. Marvasi was trying to pull her hands away from the officers['] grasps, we were standing next to a bed that was in the basement. When Ms. Marvasi was flaring her hands around and then trying to gain control of her, . . . she eventually got pushed on top of the I'm not sure if she fell or was pushed on top of the bed to try and gain control of her.

We tried to get her hands behind her. She was pushed face down, her legs were off the bed, I remember. She was face down on the bed and her hands were underneath her; we were trying to get her hands out to put them behind her back.

Q. Who's "we" at that point?

A. That was myself, Officer Carlin, Officer Guldin, Officer McLaughlin.

Q. Okay.

A. We were all trying to gain control.

When Ms. Marvasi had her hands underneath her, I was on --positioned on the right side of her body. I tried toreach my right hand in to grab her right hand and bring it behind her back, try to secure handcuffs on her. When I reached my hand in and grabbed on top of Ms. Marvasi's hand she bit my index finger on my right hand causing a cut and a little bit of bleeding. I pulled my hand out, stopped, said "She just bit me," and her hands were still underneath there.

The technique we learned in the Police Academy to avoid getting bit, which in hindsight I guess I should have done before, was to use your expandable baton to place it in between under the armpit, have one hand on the outside and bring the arm around so it's to keep your hands from going underneath and going near someone's face.

I did that, bought her hand behind her back and she was placed under arrest and handcuffed.

Q. Did you witness any of the Ms. Marvasi's interactions with any of the other officers? I mean, you described a general struggle?

A. That's correct.

Q. Do you know if Ms. Marvasi injured any of the other officers?

A. I know after after Ms. Marvasi was secured in handcuffs and the resisting stopped I know that I believe Officer Carlin had a cut on her hand, as well. I'm not sure how she got that, wasn't exactly but I know that she was injured. I had a cut on my shin; I still have a scar from that on my skin. I don't I'm not sure if Officer Guldin and Officer McLaughlin were injured; I don't believe they were.

The three other officers who were present and participated in subduing defendant corroborated Johnstone's testimony.

Defendant and her son testified for the defense. Defendant admitted that she knew the officers were there in an official capacity to execute an arrest warrant. She heard Johnstone's command to put her hands behind her back for the purpose of placing handcuffs on her wrists. She claimed, however, that she complained to Officer Carlin (the only female officer present) that the handcuffs were hurting her. She then pulled her arm away and held it tight against her chest. Defendant also denied intentionally scratching or hurting anyone.

Against this record, the Law Division found the testimony of the officers credible, and rejected defendant's account of excessive force, in part due to her intoxication at the time. The Law Division also properly deferred to the municipal court judge's credibility assessments based on his ability to have actually observed the demeanor of the witnesses as they testified. State v. Johnson, 42 N.J. 146, 157 (1964).

In this appeal, defendant raises the following argument.

POINT ONE

CLAIMANT WAS CHARGED AND CONVICTED OF RESISTING ARREST AND BITING POLICE OFFICER JOHNSTONE. SHE WAS CHARGED WITH SCRATCHING POLICE OFFICER CARLIN, BUT FOUND NOT GULTY. THE CLAIMANT DID NOT COMMIT ANY OF SAID CRIMES. SHE COMPLETELY COMPLIED WITH THE ARRESTING OFFICER'S ORDERS AND PLACED HER HANDS IMMEDIATELY BEHING [SIC] HER BACK. OFFICER CARLIN THEN IMMEDIATELY FRACTURED HER RIGHT ELBOW FOR NO REASON. CLAIMANT SCREAMED OUT "YOU ARE HURTING ME"! OFFICER CARLIN DID NOT CARE ABOUT THE APPARENT INJURY UPON THE CLAIMANT. CLAIMANT WAS CONVICTED OF TWO CHARGES WITHOUT ANY EVIDENCE THAT SAID CRIMES WERE COMMITTED.

We reject this argument and affirm substantially for the reasons expressed by Judge Pugliese in his oral opinion delivered from the bench on June 5, 2009. The findings he reached as to the evidence supporting defendant's conviction are well-supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999).