STATE OF NEW JERSEY v. ALFRED S. LANUTO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2906-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALFRED S. LANUTO a/k/a

AFIO S. LANUTO,

Defendant-Appellant.

__________________________

February 28, 2012

Submitted January 31, 2012 Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-16-10.

William E. Graves, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following an appeal from his municipal court conviction, defendant Alfred Lanuto1 was convicted in the Law Division on charges of obstruction of the administration of law, N.J.S.A. 2C:29-1, and resisting arrest, N.J.S.A. 2C:29-2. He was sentenced to pay a $500 fine, plus $33 court costs, a $50 Victim of Crimes Compensation assessment, and a $75 Safe Neighborhood Service Fund assessment. We affirm. I

At about 7:00 p.m. on July 1, 2008, Ramsey Police Officers Anthony J. Fiore and Brett Rothenburger arrived at defendant's house, in separate patrol cars, in response to an anonymous phone call reporting a "disturbance" and a need for police "intervention" at that address.2 The call had come in on the police department's direct line rather than through the 9-1-1 system. However, the caller sounded credible and the dispatcher had no reason to believe it was a crank call or false report. Without telling them whether or not it was a 9-1-1 call, he dispatched Officers Fiore and Rothenburger, who treated the matter as urgent, and proceeded to the house with their cars' sirens on and lights flashing.

When Fiore activated his car's flashing lights, the video and audio recording system in his patrol car went on. Due to the configuration of the street, he was unable to park his patrol vehicle in a position so that the video could record events occurring in front of defendant's house. But the microphone attached to Fiore's uniform created an audio record of what occurred.

According to Fiore, as soon as the officers approached the house, defendant emerged and started "yelling and screaming" at the officers that they had "no right to be here." They tried to explain that they were responding to a "9-1-1" call of a disturbance and "it's our duty to investigate to make sure that no one is injured or needs our assistance from that residence." Attempting to exercise what Fiore characterized as their "community caretaking function," the police tried to convince defendant to let them look inside the house to make sure that all of the occupants were safe.3 However, defendant continued to be "agitated and screaming."

Due to defendant's immediate, unprovoked confrontational and agitated behavior, Fiore was concerned that domestic violence may have occurred inside the house. He explained to defendant that the police could not leave the scene without first speaking to defendant's wife to be sure that she was safe. After about ten minutes, three additional officers arrived on the scene. Two of them, Officers Huth and Rork, approached the house. At this point, defendant entered the house and then briefly re-opened the front door, ostensibly to show the officers that his wife was "fine." However, as Officer Rork attempted to enter the house, defendant slammed the door on his foot. According to Rork, defendant continued forcefully pushing on the door even after Rork's foot was caught between the door and the jamb.

Several officers then pushed the door open, freeing Rork's foot, and tried to place defendant under arrest. He resisted by "bending his arms," trying to keep the officers from "putting his hands behind his back," and trying to "grab" the handcuffs. In addition to Officer Fiore's testimony, the State presented testimony from Officers Rothenburger, Huth and Rork, all of whom confirmed Fiore's version of the incident.

The defense presented no eyewitness testimony, but presented an expert witness who had analyzed the police audiotape. Although he had never visited the premises, the expert testified that, based on the interior configuration of defendant's house, he could tell from analyzing the tape that the police were inside the house at a point in time when, according to the police witnesses, they were still outside the front door.

The municipal judge acquitted defendant of assault, reasoning that defendant did not intend to injure Officer Rork. However, crediting the testimony of the police witnesses, he convicted defendant of obstruction and resisting arrest. Defendant filed an appeal from that conviction with the Law Division.4 After conducting a de novo review of the record from the municipal trial and hearing oral argument, Judge Edward A. Jerejian convicted defendant of the same charges as the municipal judge.

In a fourteen-page written opinion, Judge Jerejian made detailed findings of fact and conclusions of law, explaining the reasons for his decision. He credited the officers' version of events, after reading the municipal transcript, listening to the audio recording of the incident, and giving due deference to the credibility determinations of the municipal judge. He made these findings:

Here, the officers were acting in their official capacity; they dispatched to investigate a disturbance at the defendant's residence. The officers had a duty to ensure that [no] one was in danger. See [State v. Crawley, 187 N.J. 440, 462 (2006)]. Additionally, the officers were in marked cars and wearing uniforms.

Officers Fiore and Rothenburger testified, and the audio from the videotape shows that from the moment they arrived at the defendant's home, he was hostile, combative, and began screaming and yelling. The defendant positioned his body to prevent the officers from entering his home. The officers tried to calmly explain why they were at the defendant's home in order to ensure everyone was safe. The defendant repeatedly refused to let them in, and continued yelling and screaming at them.

Officers Rork and Huth arrived to assist. Officer Rork walked up to the door, and the defendant slammed the door on his foot. Officer Huth announced his intentions to arrest the defendant, and the officers arrested the defendant in the foyer of his home. The defendant resisted by bending his elbows, and straightening his arms at his side.

Judge McGeady made his decision based on the audio from the videotape and the testimony of the officers. Judge McGeady found the officers credible, and determined that their testimony corroborated the audio from the videotape. Judge McGeady rejected the defendant's expert testimony, and found the defendant guilty of obstruction and resisting arrest.

This Court gives due deference to Judge McGeady's credibility findings. Here, the defendant purposely prevented the officers from conducting their investigation to make sure everyone was safe. The officers repeatedly tried to explain that this was their only intention, but the defendant would not comply. He was aggressive and angry from the moment the first officers arrived. Additionally, the defendant purposely attempted to prevent the officers from arresting him by positioning his arms to make it more difficult. This Court finds that the defendant's purposeful actions satisfy both the obstructing the administration of law, and the resisting arrests statute. Therefore, the defendant is guilty de novo.

Judge Jerejian further explained why he rejected defendant's application to expand the record with a transcript of the audio recording that was not introduced in evidence at the municipal trial:

This is a trial de novo and therefore, it is this Court's responsibility to determine the case anew based on the record from the municipal court. State v. Johnson, 42 N.J. 146, 157 (1964). Specifically, Rule 3:23-8, states that "the appeal shall be heard de novo on the record unless it [shall appear that] the rights of either party may be prejudiced by a substantially unintelligible record or [that] the rights of the defendant were prejudiced below . . ." Here, the defendant is not in any way prejudiced by not having the transcript admitted into evidence. This Court listened to the audio and analyzed it just as Judge McGeady did. Additionally, because the original recording was admitted into evidence below, and not the transcript, this Court has relied on the same audio of the videotape as the lower court, and will not expand the record to include the transcript.

The judge also declined to consider defendant's argument that "the General Order of the Ramsey Police Department which governs the use of patrol car video cameras imposes a duty on the officers in the instant matter to record an [incident] involving a police/citizen encounter." The General Order was not introduced in evidence at the municipal trial, and the judge denied defendant's application to expand the record with an unauthenticated copy of the document. Citing N.J.R.E. 201(a) and N.J.R.E. 902, the judge declined to take judicial notice of the "internal, unpublished" and unsigned document.

Next, the judge rejected defendant's argument that the police department violated his due process rights by failing to videotape the incident. Relying on State v. Gordon, 261 N.J. Super. 462, 464-65 (App. Div. 1993), the judge reasoned that the police had no duty to "create evidence by videotaping" and, even if the police accidentally destroyed a videotape, eyewitness testimony would obviate the need for videotape evidence. He found no evidence that the failure to successfully videotape the incident was the result of any "bad faith on the part of the officers," and the defense was not prejudiced by the lack of a video record of the incident.

Citing the well-established legal maxim that "ignorance of the law is no excuse," the judge rejected defendant's claim premised on an alleged mistake of law under N.J.S.A. 2C:2-4a(1). See State v. Guice, 262 N.J. Super. 607, 615 (Law Div. 1993). He also found it "unlikely" that defendant, who is an attorney, "could have reasonably believed that he was justified in physically resisting and obstructing the officers." The judge further found "no dispute that the defendant satisfied the mens rea for obstruction when he purposefully obstructed the officers from conducting their investigation."

Rejecting defendant's constitutional arguments, Judge Jerejian concluded that the emergency call to the police combined with the totality of defendant's conduct gave the police "a reasonable suspicion that something was wrong" and they "had the duty to investigate whether anyone was in need of assistance." He concluded that the police had probable cause to arrest defendant for obstruction after he physically "prevented them from entering his home to ensure that all the occupants were safe, . . . blocked the entry, continued screaming, and eventually slammed the door on Officer Rork's foot." He also reasoned that "it was only after these actions" that the officers entered defendant's home as "part of their attempt to arrest the defendant." The judge found that at that point, defendant unlawfully resisted arrest. Finally, he rejected defendant's claim that the evidence should be suppressed, reasoning that

the constitutionality of law enforcement action has no bearing on a conviction for obstruction of the administration of law. State v. Crawley, 187 N.J. 440 (2006). The proper forum for challenging unlawful police conduct is in the court, not the street. Id. at 459-460.

II

Our review of the Law Division judge's decision is limited. We do not decide the facts anew, but determine whether the judge's decision is supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999). We owe particular deference to the Judge Jerejian's factual findings, "where, as in the present case," both the Law Division and municipal judges reached the same decisions on witness credibility and found the same facts. Id. at 474. On the other hand, we review the judge's legal determinations de novo. State v. De La Paz, 337 N.J. Super. 181, 190 (App Div.), certif. denied, 168 N.J. 295 (2001). Based on the record presented to us on this appeal, we find no basis to disturb defendant's conviction.

In his appellate brief, defendant presents the following points for our consideration:

POINT I: THE SEIZURE OF LANUTO'S PERSON AND ILLEGAL ENTRY INTO LANUTO'S HOME BY THE RAMSEY POLICE REQUIRE THE SUPPRESSION OF ALL EVIDENCE IN THIS CASE.

POINT II: THE STATE CANNOT CRIMINALIZE THE ASSERTION OF CONSTITUTIONAL RIGHTS BY A CITIZEN.

POINT III: THE LAW DIVISION FACTUAL FINDINGS ARE NOT BASED UPON SUFFICIENT CREDIBLE EVIDENCE AND SHOULD NOT BE FOLLOWED BY THIS COURT. (Not Raised Below.)

POINT IV: THE BREACH OF THEIR DUTY TO VIDEOTAPE THE INCIDENT BY THE RAMSEY POLICE DEPRIVES LANUTO OF CRUCIAL EVIDENCE AND REQUIRES DISMISSAL OF ALL CHARGES.

POINT V: LANUTO'S MISTAKE OF LAW OR FACT AS TO HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT AND THE SANCTITY OF HIS HOME REQUIRE REVERSAL OF HIS CONVICTION FOR OBSTRUCTING THE ADMINISTRATION OF LAW.

POINT VI: THIS COURT SHOULD EXPAND THE RECORD TO INCLUDE THE RAMSEY POLICE DEPARTMENT GENERAL ORDER AND TRANSCRIPT OF THE [FIORE] TAPE.

POINT VII: LANUTO IS NOT GUILTY OF RESISTING ARREST. (Not Raised Below.)

We find all of these arguments to be without merit and, except as addressed below, they do not warrant further discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Jerejian's thorough written opinion dated January 24, 2010. We add these comments.

Defendant argues that the police lacked probable cause or other legal grounds to conduct a warrantless search of his home, and his refusal to let them enter his home cannot constitute obstruction. We disagree. On this record, the officers acted appropriately, under the emergency aid doctrine, by seeking to enter defendant's home for the limited purpose of ensuring that the occupants were safe.

The emergency aid doctrine is derived from the commonsense understanding that exigent circumstances may require public safety officials, such as the police, firefighters, or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing serious injury. The Fourth Amendment and Article 1, Paragraph 7 do not demand that public safety officials stand by in the face of an imminent danger and delay potential lifesaving measures while critical and precious time is expended obtaining a warrant. We examine the conduct of those officials in light of what was reasonable under the fast-breaking and potentially life-threatening circumstances that were faced at the time. . . .

The emergency aid doctrine only requires that public safety officials possess an objectively reasonable basis to believe--not certitude--that there is a danger and need for prompt action. That the perceived danger, in fact, may not have existed does not invalidate the reasonableness of the decision to act at the time.

[State v. Frankel, 179 N.J. 586, 598-99 (2004) (internal citations omitted).]

To justify a search under the emergency aid doctrine, the State must satisfy a three-prong test: "the public safety official must have an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or prevent serious injury; his primary motivation for entry into the home must be to render assistance, not to find and seize evidence; and there must be a reasonable nexus between the emergency and the area or places to be searched." Id. at 600 (footnote omitted).

In this case, there was no 9-1-1 call, but Officers Fiore and Rothenburger did not know that. Further, according to the dispatcher, the anonymous caller sounded believable when she reported a disturbance that might require police intervention; he had no reason to think it was a crank call. When the police arrived on the scene, defendant came "storming" out of the house, exhibiting agitated and combative behavior which, when viewed objectively, appeared an odd response to the situation confronting him - two police officers calmly explaining that they had received a 9-1-1 call about a disturbance at his house. As perceived by the police, defendant then made frantic efforts to keep them from entering the house, even after they explained that they only wanted to make sure his family was safe. This reasonably aroused their suspicion that domestic violence may have occurred and they persisted in their efforts to get permission to enter the house.

Although the police were properly exercising their authority to enter the house to perform a limited search under the emergency aid doctrine, defendant not only blocked their way but slammed the door on Officer Rork's foot. That constituted obstruction. Defendant's reliance on State v. Rice, 251 N.J. Super. 136 (App. Div. 1991) is misplaced. Rice stands for the proposition that merely asserting one's Fourth Amendment rights, by closing the door of one's home and refusing to admit the police, does not create reasonable cause to believe that a crime is being committed in the house. Id. at 143. Defendant's conduct went considerably beyond closing the door, and his odd behavior, together with the call reporting a disturbance and a need for "intervention," reasonably heightened the officers' concern for the safety of the occupants of the house.

However, even if the police were mistaken, and had no right to enter the house, defendant was not legally entitled to slam the door on Officer Rork's foot and continue pressing on the door - and the officer's foot - until the other officers freed his foot by pushing the door open. He was properly convicted of obstruction. State v. Williams, 192 N.J. 1, 10-11 (2007); State v. Crawley, 187 N.J. 440, 456-58 (2006); State v. Jefferson, 413 N.J. Super. 344, 359 (App. Div. 2010) (noting that "defendant did not have a right to resist the police physically, even if they were violating his constitutional rights"); Cf. State v. Berlow, 284 N.J. Super. 356, 364 (Law Div. 1995)(acquitting defendant of obstruction where he did nothing beyond close and lock the door, but noting that "a contrary result might be required" had he offered more physical resistance). Likewise, defendant had no right to resist arrest, even if he believed the police were treating him in an unconstitutional manner. See N.J.S.A. 2C:29-2a(3)(b); Crawley, supra, 187 N.J. at 453-55.

Defendant's arguments concerning the videotape evidence are equally without merit for the reasons stated by Judge Jerejian. See State v. Mustaro, 411 N.J. Super. 91, 103-04 (App. Div. 2009); Gordon, supra, 261 N.J. Super. at 467. Further, having reviewed the record, we cannot agree that defendant's conviction is not supported by sufficient credible evidence. See Locurto, supra, 157 N.J. at 471. Defendant's remaining arguments are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Defendant's legal name is Alfio Lanuto. However, the summons-complaints against him were issued in the name of "Alfred" Lanuto, and that name is on the judgment of conviction from which he appeals.

2 There is no dispute that defendant and his family lived at the address specified by the caller. To protect the family's privacy we will not provide the address in this opinion.

3 In addition to defendant's wife, the police were concerned for defendant's young son, who had hurried into the house just as Officer Rothenburger was arriving in his patrol car.

4 Defendant also filed a motion to dismiss the charges as de minimus, pursuant to N.J.S.A. 2C:2-11. For reasons explained in detail in a written opinion dated January 21, 2011, Assignment Judge Peter E. Doyne denied the motion as being without merit, as well as untimely. Defendant has not appealed from the February 8, 2011 order denying his motion.