STATE OF NEW JERSEY v. PETER KUK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2635-04T22635-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER KUK,

Defendant-Appellant.

__________________________________________________________

 

Submitted January 24, 2006 - Decided February 6, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Municipal Appeal No. 43-2004.

Peter Kuk, appellant pro se.

Vincent P. Sarubbi, Camden County Prosecutor, attorney for respondent (Robert K. Uyehara, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Peter Kuk appeals from the adverse portion of a judgment entered following a trial de novo in the Superior Court of New Jersey, Law Division, Camden County. That judgment (a) vacated defendant's conviction in the Cherry Hill Municipal Court for disorderly conduct with the purpose to cause public inconvenience, annoyance or alarm, N.J.S.A. 2C:33-2a(1), and (b) affirmed defendant's conviction for resisting arrest, N.J.S.A. 2C:29-2a(1). The judge in the Law Division vacated the $250 fine imposed by the Municipal Court upon defendant and instead imposed a $25 fine.

Both the Municipal Court and the Law Division judges found that defendant had remained on the property of Professional Services Group (PSG) after he had been asked to leave. Defendant had, at one time, been a PSG member. On December 31, 2003, defendant refused to leave when asked by the staff. The police were called and when they arrived, defendant again refused to leave when so ordered. Both the Municipal Court judge and the Law Division judge found that the arresting officer then advised defendant that he was under arrest. As the officer attempted to take defendant into custody, defendant pulled away from the officer, requiring that the officer physically subdue and handcuff him.

The aim of appellate review is "to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). "[I[f the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. (citations omitted). We are satisfied from our review of the record in this case that there was sufficient credible evidence to support the determination of the Law Division judge that defendant had resisted arrest. Pursuant to N.J.S.A. 2C:29-2a(1), "a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." We have no reason to disturb the court's determination on that charge.

We note that the Law Division ultimately concluded that defendant's arrest for violating N.J.S.A. 2C:33-2a(1) was unlawful because the State was unable to prove that defendant acted "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating [the] risk thereof," or that he "engag[ed] in fighting or threatening, or in violent or tumultuous behavior[.]" The court found, however, that the officer, in attempting to remove defendant from the premises, was acting under the color of his official authority and had announced the arrest. See, e.g., State v. Brennan, 344 N.J. Super. 136, 143 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). In Brennan, we stated that:

if the police are performing a law enforcement function in an appropriate manner, i.e., not with an excessive use of force, then a citizen is obligated to comply with the directions of the police. Failure to do so can result in a number of offenses, including obstruction, N.J.S.A. 2C:29-1; hindering N.J.S.A. 2C:29-3b, resisting arrest, N.J.S.A. 2C:29-2 and . . . defiant trespass [N.J.S.A. 2C:18-3b].

[Brennan, supra, 344 N.J. Super. at 143.]

We added "If the police action is without proper legal authority there are a variety of remedies and defenses that can be invoked by the wronged party at a later time." Id. at 143-44. The record more than adequately justifies the conclusion that the officer was acting under color of his official authority.

 
Affirmed.

(continued)

(continued)

4

A-2635-04T2

February 6, 2006