STATE OF NEW JERSEY v. MARVIN WAYNE McGRIFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6287-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN WAYNE McGRIFF,

Defendant-Appellant.

___________________________________________________

March 14, 2012

Submitted February 28, 2012 Decided

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 2010-18.

Fusco & Macaluso, attorneys for appellant (Anthony J. Fusco, Jr., on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel; Adam J. Salzer, Legal Assistant, on the brief).

PER CURIAM

Following an incident at a holiday celebration at the Battleground Country Club in Manalapan, defendant was charged with: harassment, N.J.S.A. 2C:33-4; disorderly conduct, N.J.S.A. 2C:33-2a(1); and resisting arrest, N.J.S.A. 2C:29-2a(1). At the conclusion of a trial, the municipal judge found defendant guilty of all charges. Defendant appealed to the Law Division, where he was acquitted of harassment but convicted of the other offenses. A $1,000 fine and $66 in court costs were imposed.

Defendant appeals to this court, arguing:

I. THE LOWER COURT IMPROPERLY DENIED DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT DUE TO A FAMILY EMERGENCY.

II. THE APPELLANT WAS DEPRIVED OF PROCEDURAL DUE PROCESS, AS THE CRIMINAL COMPLAINT WAS IMP[RO]PERLY ALLOWED TO PROCEED IN MANALAPAN MUNICIPAL COURT AFTER A NOTICE OF CLAIM WAS FILED AGAINST MUNICIPALITY AND IT[]S POLICE DEPARTMENT.

III. APPELLANT IS NOT GUILTY OF DISORDERLY CONDUCT, CONTRARY TO THE PROVISIONS OF [N.J.S.A.] 2C:33-2.

IV. APPELLANT DID NOT RESIST ARREST, CONTRARY TO N.J.S.A. 2C:29-2a1.

V. THE COURT IMPROPERLY DISALLOWED MRS. MCGRIFF'S TESTIMONY AS AN EXPERT, WHILE ALLOWING THE STATE'S WITNESS TO TESTIFY ABOUT HIS MENTAL CONDITION AND STATEMENT OF MIND,DESPITE BOTHWITNESSES BEINGREGISTERED NURSES.

In his oral opinion, Law Division Judge Anthony J. Mellaci, Jr., rejected defendant's argument, asserted again in Point I, that defendant was prejudiced by the municipal judge's denial of an adjournment of the last day of trial. In fully discussing the circumstances, the judge explained how the municipal matter had been adjourned or delayed numerous other times because of defendant's purported illnesses or defendant's unexplained failure to appear on another occasion. The judge also found that the municipal judge properly exercised his considerable discretion in denying defense counsel's request for an adjournment based on a reason personal to defense counsel. Judge Mellaci further examined the transcript of that last day of the municipal trial and concluded that defense counsel was not impeded and defendant was not prejudiced by the judge's refusal to grant a continuance.

Judge Mellaci also considered defendant's argument, reprised in Point II here, that because defendant had served a notice of claim indicating an intent to sue Manalapan and its police force that the Manalapan Municipal Judge was required to recuse himself and transfer the matter to another municipality. Judge Mellaci determined, for reasons fully amplified in his oral decision, that there was no evidence of actual bias or prejudice. In addition, the judge correctly recognized that the mere appearance of bias compels disqualification only when it is objectively reasonable to conclude that the proceedings were unfair. See State v. McCabe, 201 N.J. 34, 43-44 (2010); State v. Perez, 356 N.J. Super. 527, 531-32 (App. Div. 2003). The judge found no evidence in the record to support such a conclusion.

In finding defendant guilty of disorderly conduct and resisting arrest, Judge Mellaci described at length and in great detail the credible evidence. He found that members of the first aid squad were called to the Battleground Country Club during the evening of December 21, 2008 to assist a victim of a fall. Even though, as Judge Mellaci observed, first aid workers are "trained never to go anywhere by themselves," upon their arrival the workers were warned that "it might be better if only one of them went into the room" where defendant was located "because [he] was slightly agitated." Consequently, one first aid squad member approached defendant alone. Defendant advised that he had slipped and fallen and was having back pain. As the first aid squad member asked for his medical history, defendant "became more agitated" and defendant's wife began providing information.

According to Judge Mellaci's findings, "[d]efendant then became increasingly agitated," and "yelled, quote, I'll kill fucking everyone, close quote, and pointed towards the gathering of people in the ballroom." A police officer had arrived by this time and was present to hear "defendant's statement about killing everyone." Defendant's "tone," which was described as "very aggressive," had "continuously escalat[ed]" since the first aid squad arrived. Accordingly, the police officer moved the first aid member aside, got close without touching defendant, and warned defendant that "he might want to watch what he says." Defendant then stood up and "got very close to the officer, asking him who he was." The officer advised defendant to "stay back" but defendant "raised his finger at the officer, put it in his face, and yelled, quote, fuck you, close quote." The officer then "grabbed [defendant's] arm, and advised the defendant that he was under arrest." Defendant "then pulled away, and a struggle ensued." During this struggle, other family members began "yelling at [the officer] to get his hands off the defendant" and began to surround him. A corrections officer was at the party and provided assistance to the officer. According to the corrections officer, the police officer "was losing control of the situation, and that it was a situation that could quickly get out of hand." Based on these and other facts discussed in great detail in his oral opinion, Judge Mellaci found defendant guilty of disorderly conduct and resisting arrest.

Judge Mellaci also rejected defendant's argument, asserted again in defendant's Point V, that his wife, who is a registered nurse, was erroneously not permitted to give an expert opinion. As Judge Mellaci observed, and as the municipal transcript reveals, defendant's wife was permitted to give an expert opinion. Defendant's wife was allowed to testify, over the State's objection, that she was "familiar with the symptoms of concussion" and that defendant's behavior and some of his symptoms were consistent with his having sustained a concussion that evening.

We affirm substantially for the reasons set forth by Judge Mellaci in his thorough and thoughtful oral opinion.