STATE OF NEW JERSEY v. VICTOR ZYSK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6084-04T26084-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR ZYSK,

Defendant-Appellant.

________________________________

 

Submitted April 24, 2006 - Decided May 31, 2006

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Docket No. BMA-2-5-5.

Joseph A. Fortunato, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi, Assistant

Prosecutor, Of counsel and on the brief).

PER CURIAM

After a trial in municipal court, defendant, Victor Zysk, was found guilty of the petty disorderly persons offense of improper behavior, N.J.S.A. 2C:33-2a(1). He was sentenced to a fine of $100, together with costs and other appropriate assessments. On the de novo appeal to the Law Division, defendant was found guilty of the same offense, and the same sentence was imposed. Defendant appeals, arguing the summons was improperly issued and the evidence insufficient to support his conviction. We affirm.

The State's proofs demonstrated that on January 3, 2004, at approximately 5:15 p.m., defendant and his girlfriend, Kathryn Federkiel, arrived at the Meadowlands Racetrack in East Rutherford. Defendant, with a binocular case strapped on his shoulder, proceeded first to the admission gate where he paid the $1.00 fee, and then passed through the turnstile. After walking about twenty feet, defendant was approached by James Patti, a security officer for the racetrack's owner and operator, the New Jersey Sports & Exposition Authority (NJSEA), who requested to check the binocular case. Defendant refused the request. He persisted in his refusal even after Patti explained to him the racetrack's policy of checking bags. According to Patrick Aramini, Assistant Vice-President of Security for NJSEA, that policy is to check binoculars for contraband, alcohol, or hazardous materials such as explosive devices.

Defendant became upset and his girlfriend, who had arrived at the scene by then, attempted to intervene by holding the case out to show that it contained binoculars. However, the case remained attached by a strap to defendant's shoulders and defendant still refused to comply with the security officer's request to inspect the contents.

Defendant continued acting belligerently and as a result, security officers John Miele and Ron Mattoon responded to Patti's call for backup. After resisting any inspection of his binocular case for about the next five minutes, defendant, in the presence of other patrons, ran away from the security officers and up the ramp. Miele and Mattoon pursued defendant into the building and eventually identified defendant to the State Police detectives responding to the scene. Despite further explanation of the racetrack's search policy by the State Police officers, defendant remained uncooperative, insisting it was his constitutional right to be free from such inspections. Eventually, the State Police officers took defendant to the State Police office at the racetrack. A complaint charging defendant with disorderly conduct was signed by Michael Fortino, Security Manager for the NJSEA at the racetrack, sworn to before State Police Detective Thomas Gorman, and supported by an affidavit of Fortino attesting to the fact that defendant refused to have his bag checked by security causing a public disruption. The summons-complaint also reflects there was a separate, independent probable cause determination by East Rutherford Municipal Court Administrator, Daryl Murray, based on Fortino's affidavit.

Defendant was found guilty in the municipal court of improper behavior. On de novo appeal, the Law Division judge also adjudicated defendant guilty of the same offense, concluding:

This Court finds the defendant did not act with a purpose to cause an inconvenience or public inconvenience, or alarm, but did, beyond a reasonable doubt, recklessly create a risk of public inconvenience, annoyance, or alarm.

When defendant, in front of customers entering the track, broke away from Security, whether he ran or walked, and entered the track paddock area, he created a risk that the flow of people into the track would be stopped or delayed. It is irrelevant, of course, that the flow of people was not, in fact, stopped.

When a person breaks through Security

-- I use the word break because he was not searched, and is pursued, this action is likely, particularly in our post-9/11 world, to cause public alarm in the midst of such a large group of people assembled at the track.

We know, for instance, that people were watching the event unfold, as Ms. [Federkiel] testified that some people were watching.

Even before defendant broke away, his actions, though insufficient in themselves[] to violate the statute[,] caused some level of . . . disturbance. Mr. Patt[i] testified that, "Everything was getting disturbed, you know, trying to concentrate on the other patrons that had to be examined."

Defendant must have also engaged in activity specified in sections 1 or 2 to support a conviction. Here, this Court does find that the defendant clearly created a hazardous condition by ignoring Security and entering the track.

If he had disappeared into the crowd, Security might well have to have evacuated the track. The possibility of a mass evacuation of frightened people certainly is a hazardous condition under the statute.

. . . .

The fact that he was randomly stopped at that time and never randomly stopped before really is not a defense to the issue. He did create a dangerous or hazardous condition by ignoring the Security.

Defendant contends that the evidence does not support his conviction of improper behavior. We disagree.

Appellate review of municipal court convictions is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). In both the Law and Appellate Divisions, the court

must review the record in the light of the contention, but not initially from the point of view of how it would decide the matter if it were the court of first instance. It should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.

The aim of the review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.

[Id. at 470-71 (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).]

This standard of substantial deference is even more compelling where two lower courts enter concurrent judgments on factual issues. "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." Id. at 474.

The record clearly supports defendant's conviction. N.J.S.A. 2C:33-2a(2) provides, in relevant part, "[a] person is guilty of a petty disorderly persons offense, if with the purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he . . . [c]reates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor." Section 2C:33-2 is confined to "public" inconvenience, the term "public" being defined as "affecting or likely to affect persons in a place to which the public or a substantial group has access . . . ." N.J.S.A. 2C:33-2.

Here, defendant was stopped at the racetrack gate for a security check of his binocular case in accordance with official NJSEA policy, designed to look for, among other things, projectiles, alcoholic beverages, hazardous materials, or explosive devices concealed in such packages. Instead of cooperating or, alternatively, leaving and asking for a refund or putting the case in his car, defendant became belligerent, requiring the intervention of other security officers, all occurring within the plain view of patrons entering the racetrack. Worse yet, defendant's resistance did not end there. He insisted that no one was going to stop him, breached security, and fled into the racetrack, necessitating a pursuit in full view of other track patrons until his apprehension by State Police detectives notified of the security breach. By engaging in such behavior and diverting security personnel and police officers from their normal duties, defendant recklessly risked public inconvenience, annoyance or alarm and created a physically dangerous condition not only to himself and to the security personnel chasing him, but also to members of the general public in close proximity. Accordingly, his conviction of improper behavior under N.J.S.A. 2C:33-2a(1) is well supported in the evidence.

Nevertheless, defendant contends his conviction should be vacated because the process was invalid in that the complaint, having been signed by an individual other than a law enforcement officer, should not have been issued until there had been a finding of probable cause by a municipal court judge or administrator. We conclude that the complaint-summons was not legally deficient to warrant dismissal thereof and a reversal of defendant's conviction.

The issuance of process in municipal court non-indictable matters is governed by Rule 7:2-2. Paragraph (a) of the rule, dealing with the authorization of process, distinguishes between citizen complaints (subsection (1)) and law enforcement officer complaints (subsection (2)). In the case of a citizen complaint, the rule provides that only the judge or court or deputy court administrator may issue the process and only if the judicial officer finds probable cause, which finding must be noted on the face of the warrant or summons. In the case, however, of a law enforcement officer complaint, the officer may himself issue the summons without a judicial probable cause finding.

Here, the signature of the complainant security officer was properly witnessed by the State Police Officer. R. 7:2-1(a)(1); N.J.S.A. 2B:12-21. The complainant swore out an affidavit attesting to facts establishing probable cause to believe defendant committed the petty disorderly persons offense of improper behavior. Moreover, based thereon, a separate, independent probable cause finding was made by the municipal court administrator. Under the circumstances, we do not view as a fatal blow the fact that the probable cause determination may have been made following issuance of the summons to defendant, upon filing the complaint in the municipal court. In this instance, defendant received the protection which the issuance of valid process is designed to afford under our rules of practice, and we find no violation of a constitutional or jurisdictional nature to upset defendant's conviction. See R. 3:23-8(c); State v. Barnes, 84 N.J. 362, 367 (1980).

In any event, the requirement of a neutral probable cause finding is inapposite in respect of a summons in lieu of warrant issued following an arrest as prescribed in Rule 3:4-1, Rule 7:2-2, and N.J.S.A. 2B:12-21b. See State v. Kenison, 248 N.J. Super. 189 (Law Div. 1990), aff'd o.b., 248 N.J. Super. 126 (App. Div. 1991). The latter provides:

A police officer in charge of a police station, other than an officer who participated in the arrest of the defendant, may exercise the power of the municipal court to administer oaths for complaints filed with the municipal court. Any police officer may issue summonses related to such complaints, and may as authorized by the Rules of the Court issue a summons in lieu of an arrest for an offense committed in the officer's presence.

[N.J.S.A. 2B:12-21b.]

This statute was held applicable to a service area located off the New Jersey Turnpike, a portion of which was used as a satellite station for a special detail of the New Jersey State Police, from which complaints-summonses could be issued to defendants who engaged in lewd behavior in the service station restrooms. Kenison, supra, 248 N.J. Super. at 201-05.

Our understanding of the record in this case is that, upon apprehension, defendant was taken to a discrete area of the Meadowlands Racetrack used and maintained by members of the State Police Sports Complex unit as an office from which the complaint-summons in this case issued to defendant. As such, it appears to qualify as a police substation within the scope of N.J.S.A. 2B:12-21b, to process persons, such as defendant, arrested for improper behavior by a special state police detail assigned to the Meadowlands Racetrack. Consequently, the complaint-summons was validly issued therefrom with or without a neutral probable cause determination.

Affirmed.

 

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A-6084-04T2

May 31, 2006