STATE OF NEW JERSEY v. AMANDA KERNAHAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3118-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMANDA KERNAHAN,

Defendant-Appellant.

________________________________________________________________

February 13, 2013

Submitted January 28, 2013 - Decided

Before Judges Parrillo and Maven.

On Appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 11-052.

Rudnick, Addonizio, Pappa & Cassaza, P.C., attorneys for appellant (Michael J. Pappa, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Caitlin Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Amanda Kernahan appeals from a January 13, 2012 judgment of the Law Division, after its de novo review of the municipal court record, finding her guilty of resisting arrest in violation of N.J.S.A. 2C:29-2(a)(1). Defendant was sentenced to pay a $256 fine, of which $150 was suspended, and $33 in court costs. Defendant's sole claim before us is that the conviction was against the weight of the credible evidence. We reject this argument and affirm.

The circumstances in the matter are as follows. On November 14, 2010, at approximately 8:30 p.m., Red Bank Police Officer Nicholas Maletto was dispatched to defendant's residence to respond to a verbal dispute between defendant and her ex-husband involving child custody. Upon arrival, Maletto spoke with defendant's ex-husband in the driveway, after which he proceeded to the side door of defendant's home. Defendant opened the side door and began to yell about her younger child not receiving medical treatment for his fever, in a manner that Maletto noted was "highly irate." Maletto observed defendant sway from left to right while she yelled and smelled an odor of alcohol emanating from her.

Maletto advised defendant to lower her voice, cease her tumultuous behavior, and speak to him about why she had contacted the police. Disregarding the officer's instruction, defendant continued to yell. Maletto informed defendant that if she persisted, she would be arrested for disorderly conduct. Defendant continued yelling and attempted to slam the door in the officer's face. Maletto held the door open so that he could speak with defendant, but she continued screaming and yelling at both the officer and her ex-husband. At that time, Maletto informed defendant "she was going to be placed under arrest for disorderly conduct." Officer Matthew Ehrenreich arrived on the scene just as defendant turned away from Maletto and fled to the second floor of her home. The officers proceeded upstairs to locate defendant.

They discovered defendant in the master bedroom, yelling into her phone, and both officers informed defendant that she was under arrest. Defendant continued to back away while staying on the phone. The officers ordered defendant to place the phone down for their safety, but again, defendant walked away and did not comply with their instructions. Officer Paul Perez, who now had arrived on the scene, witnessed these actions and defendant's noncompliance.

Maletto attempted to grab defendant's wrist in order to escort her to the doorway, but defendant pulled away. At that time, Ehrenreich approached defendant and placed her in a compliance hold. Defendant dropped the phone and lunged towards the bed. The officers then handcuffed defendant.

The officers escorted defendant downstairs and outside towards the patrol vehicle. Defendant continued yelling at the officers, calling them idiots and using other offensive language. The officers advised defendant to step into the patrol vehicle and informed her that if she continued to refuse, they would assist her into the vehicle. At that point, defendant complied and stepped into the patrol vehicle. Defendant was subsequently charged with disorderly conduct, contrary to N.J.S.A. 2C:33-2(a)(1), and resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(1).

The municipal judge, Judge Colannino, credited Maletto's testimony regarding resisting arrest, as supported by the testimony of Ehrenreich and Perez. The court found that defendant knew that she was under arrest, and refused to submit. The court determined that defendant's actions constituted resisting arrest in violation of the statute and found defendant guilty. The court, however, acquitted defendant of disorderly conduct due to a lack of evidence that her conduct caused public inconvenience.

In the Law Division's municipal appeal, Judge Lisa Thornton applied the correct standard by making her own findings of fact based on the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings. See State v. Locurto, 157 N.J. 463, 473-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). Upon review of the testimonial and physical evidence presented to the municipal court, Judge Thornton made detailed factual findings. She found sufficient support in the record to support the finding that the officers' testimony was credible and defendant's testimony incredible, particularly, that she did not know that she was under arrest. The court found that the State had proven that defendant attempted to prevent a law enforcement officer from arresting her by attempting to close the door on Maletto's face when she was advised that she was under arrest; retreating to her upstairs bedroom; refusing to terminate her phone call when she was advised a second and third time that she was under arrest; refusing to allow the officers to place her in handcuffs; and pulling away from them repeatedly, as they were trying to place her under arrest. The court, therefore, found defendant guilty upon de novo review of the municipal court record and imposed the sentence previously mentioned. This appeal followed.

Defendant argues that the officers rendered inconsistent testimony regarding her alleged disorderly conduct and intoxication, and amplified their trial testimony "to support

. . . the [criminal] charges that could not be substantiated based upon a plain reading of their reports." Defendant asserts that the case "comes down to the defendant's clear testimony versus the inconsistent and suspect testimony of the officers involved in this case."

Since the defendant challenges only the determination of credibility of the witnesses' testimony, our review is very limited. As we stated above, the municipal court judge made credibility determinations after observing the testimony of the witnesses and examining the evidence. The Law Division judge reviewed the record and made similar credibility determinations. We defer to the judges' findings, particularly where both the Law Division and municipal court judges reached the same decision on witness credibility and found the same facts. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005); Locurto, supra, 157 N.J. at 474. "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Clarksburg Inn, supra, 375 N.J. Super. at 639 (citing Johnson, supra, 42 N.J. at 157). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474. Unless the municipal court and the trial court have made findings "so wide of the mark" then these findings will not be altered. Johnson, supra, 42 N.J. at 162. We do not find that to be the case here.

Applying this highly deferential standard, based upon our review of the complete record, we conclude that Judge Thornton's findings are amply supported by substantial credible evidence. Accordingly, we have no occasion to interfere with those findings.

D