STATE OF NEW JERSEY v. SHERRIE ANN BOSESKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5477-04T25477-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHERRIE ANN BOSESKI,

Defendant-Appellant.

_______________________________________________________

 

Submitted January 30, 2006 - Decided February 8, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. 04-123.

Charles H. Landesman, attorney for appellant.

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

PER CURIAM

Evidence adduced at trial revealed that, in the early evening of November 5, 2003, the proprietor of a tavern in North Arlington sought defendant's removal from the premises. Defendant had caused a disturbance by removing her shirt, and had refused requests that she leave. Police officers arrived and attempted to persuade defendant to leave, but she responded with obscenities. One officer explained to her the tavern's right to refuse to serve her, again asked her to leave and offered to either drive her home or call her a taxi. Defendant responded with more obscenities and an assertion of what she referred to as her "God damn rights."

Undaunted the officers continued to request that defendant depart, but she continued to threaten them. She uttered additional obscenities, acted in a combative fashion, and even urged the officers to arrest her. This caused the officers to escalate their efforts by physically escorting defendant out of the tavern. Defendant physically resisted and, in fact, kicked one of the officers in the shin and collapsed on the floor in an attempt to prevent removal.

Outside the tavern, defendant continued to resist the officers' efforts and, while the officers attempted to handcuff her, she again attempted to kick one of the officers, yelled obscenities and threw herself to the ground. Once handcuffed, she unsuccessfully continued to resist efforts to place her into the police vehicle.

At the police station, defendant continued to scream obscenities and threats at the officers. Defendant resisted efforts to escort her into a jail cell, and again kicked one of the officers.

Defendant was charged in four separate complaints. She was charged in W-2003-795-239 with disorderly conduct, N.J.S.A. 2C:33-2(a)(1), in W-2003-796-293 with aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5), in W-2003-797-239 with another count of aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5), and in W-2003-798-239 with resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The aggravated assault charges were later downgraded to simple assault, N.J.S.A. 2C:12-1(a), and the resisting arrest charge was downgraded to the disorderly persons offense of preventing an officer from effecting an arrest, N.J.S.A. 2C:29-2(a).

The municipal court judge heard the testimony of the three police officers involved, who described in detail the events outlined above. Defendant also testified and refuted the officers' testimony, asserting that when she entered the tavern the police were already present and immediately handcuffed and beat her. She denied resisting arrest and testified that the officers took her outside of the tavern and repeatedly slammed her into a concrete building and threw her onto the hood of the police vehicle. She denied kicking any of the officers, although she acknowledged that while being escorted into a jail cell she may have lost her balance and stepped backward onto an officer's leg.

At the conclusion of the trial, the municipal judge found the officers' testimony credible and found defendant's contrary testimony unworthy of belief. As a result, the judge found defendant guilty of disorderly conduct, both counts of simple assault, and of preventing an officer from effecting an arrest. The judge imposed fines of $156 on each of the four counts, as well as court costs ($30), VCCB assessments (($50), and Safe Neighborhood assessments ($75), which collectively totaled $1,244.

Defendant appealed pursuant to R. 3:23. The Law Division judge considered the evidence adduced in the municipal court, granted defendant's motion to supplement the record by including her medical records, and found defendant guilty of the charges. The Law Division judge, however, for sentencing purposes merged the other convictions into the simple assault conviction contained in W-2003-796-239, and imposed a $156 fine, $30 in costs, a $50 VCCB assessment, and a $75 Safe Neighborhood assessment.

Defendant filed a notice of appeal in this court. On appeal, she presents the following arguments for our consideration:

I. DEFENDANT'S CONVICTIONS SHOULD BE VACATED AND JUDGMENTS OF ACQUITTAL ENTERED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND THE DEFENDANT GUILTY OF THESE CHARGES BEYOND A REASONABLE DOUBT.

II. THE COMPLAINTS FOR SIMPLE ASSAULT SHOULD BE DISMISSED BECAUSE DEFENDANT'S CONDUCT WAS DE MINIMUS [SIC]. THE MATTER SHOULD BE REMANDED TO THE BERGEN COUNTY ASSIGNMENT JUDGE TO CONSIDER DISMISSAL OF THE SIMPLE ASSAULT CHARGES PURSUANT TO N.J.S.A. 2C:2-11.

In its brief on the merits, the State argued that the Law Division judge's merger of the convictions was erroneous and that we should reverse that determination and remand for resentencing. We granted the State's motion for leave to file a cross-appeal nunc pro tunc. After carefully reviewing the record and the parties' arguments, we conclude that the issue raised by the State in its cross-appeal is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also conclude that the arguments asserted by defendant are without merit and affirm, adding only the following brief comments.

Defendant's argument that there was insufficient evidence in the record to support her conviction of any of the charges is based upon her belief that because she gave testimony that conflicted with the officers' testimony, the State could not overcome its burden of proving her guilt beyond a reasonable doubt. That argument is erroneous. The mere presentation of disputed questions of fact does not compel a conclusion that there is reasonable doubt. Here, defendant's testimony was found by the municipal judge to be lacking in credibility; the municipal judge also found the officers' testimony to be believable. And the Law Division judge came to the same conclusion, having given due regard to the opportunity of the municipal judge to observe the witnesses, as was appropriate in his de novo review in this matter. State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). On appeal, we are required to defer to the findings of the Law Division judge. State v. Locurto, supra, 157 N.J. at 470-72. In accepting the finding that the officers testified truthfully and defendant did not -- as the standard applicable to this appeal requires -- we are required to defer to the judge's finding that the State satisfied its burden of proving defendant's guilt beyond a reasonable doubt.

In this appeal, defendant argues for the first time that the matters for which she was charged were de minimis. N.J.S.A. 2C:2-11. A similar argument was rejected in State v. Downey, 242 N.J. Super. 367 (Law Div. 1988), where the defendant, a television show host, had slapped one of the show's participant. Judge Humphreys rejected defendant's argument that the charges should have been dismissed as de minimis because, even though the slap produced no injury other than a stinging sensation, "[a] physical assault is a physical assault," id. at 374, and there is nothing trivial about such a violent act regardless of the small harm caused, id. at 376. While the officer who was kicked by defendant here may not have suffered any injury beyond the momentary sensation of being kicked, it is the assaultive nature of defendant's conduct that is relevant to a de minimis consideration, and, as held in Downey, we conclude that there was nothing trivial or de minimis about defendant's conduct.

 
Affirmed.

(continued)

(continued)

7

A-5477-04T2

February 8, 2006