STATE OF NEW JERSEY v. RAFAEL FERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1752-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAFAEL FERNANDEZ,

Defendant-Appellant.

________________________________________________________________

October 25, 2012

 

Argued September 20, 2012 - Decided

 

Before Judges Simonelli and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2010-40.

 

John S. Furlong argued the cause for appellant (Furlong and Krasny, attorneys; Mr. Furlong and Andrew Mark Ferencevych, on the brief).

 

Michael D. Grillo, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Grillo, of counsel and on the brief).

PER CURIAM

Defendant Rafael A. Fernandez1 appeals from a November 15, 2011 judgment of conviction for the disorderly persons offense of obstructing the administration of law,2 N.J.S.A. 2C:29-1(b), after a trial de novo on the record in the Law Division. No jail term or fine was imposed. After reviewing the record in light of the contentions advanced on appeal, we reverse, finding that the Law Division applied the wrong standard of review.

The Hamilton Township SWAT3 team executed a warrant at defendant's home for the arrest of defendant's older son, Rafael G. Fernandez, who was wanted in connection with a homicide investigation. Defendant resided in the home with his wife and two sons, aged thirteen and eighteen. His seventy-five-year-old father was also visiting from the Dominican Republic. Defendant, his wife and his father spoke only Spanish.4 Defendant, who was fifty-three years old, used a cane due to a stroke he suffered two years before that left him without strength on his left side.

The State's witnesses testified as follows. Hamilton Township Police Detective Matthew Bagley was positioned in the middle of the eight-to-ten-person SWAT team, armed with a Sig Sauer .45 caliber sidearm in a holster at his side and a Heckler and Koch MP5 semi-automatic weapon in a strap over his shoulder. The team was dressed in olive-colored uniforms, with helmets and body armor, that had "Police" printed in various locations.

Sergeant Joseph Klimaszewski was at the head of the group. Upon reaching the locked front door leading from the porch into the house, Klimaszewski knocked and announced that he had a search5 warrant. When nobody answered, Klimaszewski prepared a battering ram to knock down the door. As he swung the ram back, defendant came to the door and tried to hold it closed. Klimaszewski successfully opened the door, knocking defendant back.

The SWAT team members then entered the residence, yelling numerous times in English, "police," "search warrant," and "get down on the ground." It was the job of the lead officers to clear the route to allow the remaining SWAT members to enter the residence safely and execute the warrant. Klimaszewski was the first one through the doorway. His movement through the entry hallway was obstructed by defendant's elderly father. Klimaszewski physically removed defendant's father and placed him on a couch, where he remained. Next, Bagley came in, but was obstructed in the narrow hall by defendant. Bagley looked at defendant and stated "police search warrant, get down on the ground." Defendant did not comply. Bagley then struggled with defendant, brought him to the ground, kneeled on top of him, and handcuffed his hands behind his back with the assistance of Klimaszewski. Bagley testified that defendant never tried to strike him, "[h]e just used his body weight to push against my body weight."

During Bagley's struggle with defendant, Bagley's gun discharged. Although he does not recall the weapon firing, Bagley testified that the semi-automatic machine gun somehow discharged, perhaps as a result of it getting caught on a curtain rod that had been fastened to the door that opened into the hallway leading into the room. Bagley did not initially notice that his gun had fired, but later learned it did from other officers.6 Klimaszewski testified that after he heard the gunshot he saw the rod, with the curtain still on it, lodged in the machine gun's trigger.

Defendant testified to the following facts. He was sitting down to dinner with his wife and father when the police arrived. Defendant stood up and went to the door to open it with his father following. As defendant pulled the front door to open it, the police officers announced, "Police. Police[,]" and struck the door with the battering ram. Detective Bagley threw defendant down on the ground, yelling at him. Bagley then pulled defendant's arm behind his back to handcuff him, causing defendant to cry out in pain. Defendant testified that when he was on the floor, Bagley drew his handgun and fired a shot close to defendant's head.

Thus, defendant believed Bagley purposefully fired his handgun, whereas the police testified that Bagley's semi-automatic gun accidentally discharged while Bagley was struggling to handcuff defendant. Defendant testified that Bagley also punched him, and that he went to the hospital for treatment of injuries, including bruises and blood spots on his face. Defendant identified photographs of his injuries, which were taken the following day.

An internal affairs officer and an evidence technician conducted an investigation into the firearm discharge. No shell casing was reported found by the police at the scene, although both weapons carried by Bagley that evening eject such a casing when fired. The evidence technician attempted to retrieve the bullet for analysis, but could not, because it was thought that removal of the bullet might cause structural damage to the home and the internal affairs officer did not deem the recovery of the bullet to be of great importance. Bagley's two weapons use different caliber bullets with different shell casings.

The MP5 was initially inspected to determine whether it was in proper working order, which required that it be fired in controlled conditions, and Bagley testified that he never turned over his handgun for inspection because "it was never in question." Thus, neither gun was inspected to determine if it had been discharged during the altercation with defendant. Both guns had trigger guards to prevent accidental discharge.

Defendant was acquitted of resisting arrest, N.J.S.A. 2C:29-2, by the municipal court judge and convicted only of obstruction of justice, N.J.S.A. 2C:29-1.

Defendant raises the following issues on appeal:

POINT I: THE REVIEWING COURT ERRED IN ITS APPLICATION OF THE DE NOVO REVIEW STANDARD AND FAILED TO EXAMINE THE RECORD ANEW.

 

POINT II: THE REVIEWING COURT ERRED IN ADOPTING THE TRIAL COURT'S CLEARLY MISTAKEN RULING BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT [THAT] DEFENDANT OBSTRUCTED [THE] ADMINISTRATION OF LAW.

 

POINT III: THE REVIEWING COURT ERRONEOUSLY ADOPTED THE TRIAL COURT'S INCONSISTENT VERDICTS.

 

Our scope of review of the Law Division is limited, and centers on "whether the Law Division's de novo findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J.146, 162 (1964). Review of municipal court decisions in the Law Division, however, is de novo on the record. R.3:23-8(a).

Defendant argues in Point I of his brief that the court erred when it failed to properly conduct a de novo review. The court in a trial de novo must "make his own findings of fact" based upon the record made in the municipal court. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function . . . ." Ibid. (citations omitted).

Here, the municipal judge accepted the testimony regarding the investigation into the discharge of Detective Bagley's firearm for the limited purpose of assessing the credibility of the State's three witnesses. After acknowledging this evidence, but not drawing any conclusions from it, the municipal judge determined that the State witnesses were nonetheless more credible than the defense witnesses. The municipal judge specifically relied on Sergeant Klimaszewski's testimony, finding that he:

was not the officer involved in the altercation. He was the closest to the conflict. He was not in a supervisory role and he appeared to testify truthfully without bias or prejudice. His testimony was detailed and specific and, if he did not know an answer, he would not step outside his specific recollection.

 

In contrast, the municipal judge determined that defendant seemed to "take[] certain liberties with his recollection."

"The Law Division judge correctly gave deference to the credibility findings of the [municipal] trial judge as [s]he was the one who could judge the witnesses' demeanor and reactions." State v. Avena, 281 N.J. Super.327, 334 (App. Div. 1995). See alsoState v. Locurto, 157 N.J.463, 472 (1999). The Law Division, however, then went on to indicate:

As to the Defendant's argument of a cover-up regarding the discharge of Officer Bagley's firearm, [the municipal court judge] did not find this testimony relevant to the charges against the Defendant. This, in this Court's opinion, is a close call. This Court may have considered such testimony. However, [the municipal court judge]'s finding is not a clearly mistaken one, such that the interest of justice demanded intervention and correction. See Locurto, [supra,] 157 N.J. [ ] at 471.

Thus, the Law Division mistakenly adopted our standard of review, rather than conducting a de novo analysis, when weighing the extensive evidence regarding the irregularities involved in the investigation into Bagley's purportedly accidental discharge of his weapon. Although we do not know if the Law Division would have ultimately come to a different conclusion regarding defendant's guilt if it had made an independent evaluation of this evidence, we are constrained to reverse and remand to the Law Division for a de novo review on the record without according deference to the municipal judge in this regard. Because we reverse on this basis, we do not reach the remaining issues raised by defendant on appeal.

Reversed and remanded. We do not retain jurisdiction.

1 Defendant's middle initial was not used in the judgment of conviction. We add the middle initial to distinguish defendant from his older son.

2 The criminal complaint specifically charged that defendant did "purposely prevent or attempt to prevent a public servant from lawfully performing an official function by means of physical interference or obstacle, specifically by refusing to get on the floor when verbally told to do so by the officer, who was conducting a raid of the residence with other officers in order to serve an arrest warrant for a crime . . . ."

3 The police testified that SWAT stands for "Special Weapons and Tactics."

4 During all stages of the trial, defendant required the assistance of an interpreter.

5 Although the police testified that they repeatedly announced they had a search warrant, the State produced no such evidence and it appears that they had only an arrest warrant.

6 In his accidental discharge report, Bagley wrote, "I am not certain if the curtain rod found inside the trigger guard or another part of my tactical gear may have caused the manipulation of the trigger causing the firearm to accidentally discharge."