STATE OF NEW JERSEY v. NASIR FINNEMEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5377-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NASIR FINNEMEN,

Defendant-Appellant.

_______________________________

December 27, 2012

Argued December 12, 2012 - Decided

Before Judges Grall and Simonelli.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Municipal Appeal No. 01-11.

Peter J. Coote argued the cause for

appellant.

Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).

PER CURIAM

Following trial de novo on the record of the Municipal Court of Camden, the Law Division judge found defendant Nasir Finnemen guilty of disorderly conduct, N.J.S.A. 2C:33-2a, and of the disorderly persons offense of obstruction of administration of law, N.J.S.A. 2C:29-1a. The judge merged defendant's convictions and sentenced defendant to pay a $300 fine, $33 for court costs, a $50 VCCB penalty and a $75 SNSF assessment.

Defendant raises three issues on appeal:

I. THE EVIDENCE DOES NOT SUPPORT THE CRIME

[SIC] OF OBSTRUCTION OF LAW.

II. THE EVIDENCE DOES NOT SUPPORT THE CRIME

[SIC] OF DISORDERLY CONDUCT.

III. APPELLANT-DEFENDANT FINNEMEN HAD A

RIGHT TO COUNSEL AT THE TRIAL DE NOVO.

Patrolmen Khary Bullock and John Venuto of the Transit Division of the Delaware River Port Authority testified for the State. On the night of October 3, 2009, they were patrolling in a marked police car within steps of the transportation center in Camden. Venuto saw defendant standing on the sidewalk holding a can that appeared to be an alcoholic beverage. Venuto left the police car, stopped defendant and saw that he was, in fact, carrying a twelve-ounce can of beer. Venuto issued and served defendant with a citation for having an open container of alcohol.

The officers resumed their patrol and stopped two other men. While Bullock spoke to one and Venuto the other, defendant approached Bullock and asked for his badge number. According to Bullock, defendant was agitated and said he was upset. Bullock asked defendant to back away several times, explaining that he was dealing with others and needed to concentrate. Venuto heard Bullock say, "We are in the middle of an investigation. You need to step away. When we're clear of this investigation we will talk to you and handle your problem."

When Bullock asked defendant to move for about the fifth time, defendant was within two feet of Bullock, within arm's reach, and had raised his hands towards Bullock. Venuto explained that defendant "kept walking towards" his partner, pointed his finger at him and "got up in his face." Based on defendant's proximity and aggressive manner, Bullock placed him on the ground face down and handcuffed him.

Defendant testified and contradicted the patrolmen's testimony, but the municipal court judge credited the patrolmen's, not defendant's, testimony. The Law Division judge accepted and relied upon that determination.

Crediting the patrolmen's testimony and carefully reviewing the entire record of the municipal court, the Law Division judge found that the State established defendant's guilt by proof beyond a reasonable doubt. The question for this court is whether the judge's findings of guilt could reasonably have been reached "on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964); see State v. Locurto, 157 N.J. 463, 470-72 (1999) (applying the Johnson standard in reviewing a judge's determinations on a suppression motion).

The petty disorderly persons offense of disorderly conduct is defined as follows:

A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he

(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or

(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

[N.J.S.A. 2C:33-2a.]

The judge considered the elements of the offense and rejected defendant's claim that his sole purpose was to obtain Bullock's badge number. The judge concluded that defendant's confrontational approach interfered with an ongoing investigation and created a dangerous situation when he repeatedly approached the otherwise occupied patrolman, despite the fact that he could have served his only legitimate purpose by waiting until the patrolman was free to speak with him. Given the standard of review, there is no basis for disturbing this conviction. The judge's findings are well supported by the record.

The record provides equally adequate support for the judge's conclusion that defendant was also guilty of obstructing the administration of law. That offense can be established by proof that the defendant "purposely" obstructed or impaired or perverted the administration of law, or prevented or attempted to prevent a public servant from lawfully performing an official function by means of physical interference. N.J.S.A. 2C:29-1a.

The judge found that Bullock's ongoing investigation was an act of administration of law and the defendant interfered with it, physically, by repeatedly and aggressively demanding Bullock's name and badge number while standing within arm's length of an officer conducting an investigation on a public street at night. Defendant's argument that his conduct does not amount to physical interference lacks sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

We turn to consider defendant's claim that he was entitled to representation of court-appointed counsel in the Law Division. In this State, the right to appointed counsel depends upon whether an indigent defendant is facing imprisonment or other consequence of magnitude. Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971).

Defendant was not, however, facing a consequence of magnitude. The judge of the municipal court had imposed a sentence that did not include imprisonment; the sanctions imposed were a $300 fine, $33 court costs and assessments totaling $125, an aggregate of $458. A monetary obligation in that amount is not a consequence of magnitude. Guidelines for Determination of Consequence of Magnitude, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII to R. 7:3 2 at 2465 (2013) (stating that "[a]ny monetary sanction imposed by the court of $750 or greater in the aggregate" is a consequence of magnitude); see State v. Mierzwa, 420 N.J. Super. 207, 214 (App. Div. 2011) (citing the guidelines and concluding that financial obligation in the aggregate amount of $3314 is a consequence of magnitude).

As a matter of policy, the Supreme Court has concluded that a judge conducting a trial de novo on the record of the municipal court may not impose a sentence greater than the sentence imposed by the municipal court. State v. DeBonis, 58 N.J. 182, 188-89 (1971); see State v. Kashi, 180 N.J. 45, 49 (2004) (reconfirming that policy). Accordingly, defendant, who no longer faced a consequence of magnitude, did not have a right to have appointed counsel in the Law Division.

At oral argument before this court, designated appellate counsel argued for the first time that his appointment to represent defendant in this court establishes that the Law Division judge erred in declining to appoint an attorney to represent defendant on his de novo appeal. The untimely and unsupported assertion lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We considered and rejected a substantially similar claim in State v. Smith, 408 N.J. Super. 484, 491 (App. Div.), certif. denied, 200 N.J. 477 (2009).

Affirmed.