STATE OF NEW JERSEY v. A.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3252-06T53252-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERALD HELLER,

Defendant-Appellant.

______________________________

 

Submitted October 1, 2007 - Decided October 22, 2007

Before Judges S. L. Reisner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MA-06-092.

Maria Arena, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief)

PER CURIAM

After a trial in municipal court, defendant Gerald Heller was found guilty of the disorderly persons offenses of obstruction and resisting arrest, N.J.S.A. 2C:29-1 and N.J.S.A. 2C:29-2a, respectively. He was sentenced to a fine of $100 on each conviction, together with costs and other appropriate assessments. On a de novo appeal to the Law Division, defendant was found guilty of the same offenses, and the same sentences were imposed. We affirm.

On May 12, 2006, following his confrontation with Detective Kimberly Leavy and Patrolman Yu Kim of the City of Long Branch Police Department, defendant was arrested and charged with the two disorderly persons offenses. Prior to trial in the municipal court, defendant filed a motion to suppress evidence. Recognizing that the testimony on the motion and trial would be duplicative, the municipal judge, with consent of the parties, reserved on the motion until the end of trial, after which he found defendant guilty of both charges, impliedly denying the motion to suppress. The only witnesses who testified were Detective Leavy and defendant.

Detective Leavy testified as follows. The police department had received a telephone communication from the mother of two young females, ages ten and twelve, stating that on the date of the incident, an unidentified man had followed the two girls across a parking lot while they were walking to school and had reached out to grab one of the girls. The girls had described the man by his skin color, facial hair, and clothing: a multi-colored shirt and brown shoes.

Leavy responded to the area of the alleged incident but did not observe anyone matching the perpetrator's description. After talking to one of the girls at school, Leavy returned to the general area of the incident and stopped defendant approximately one block from the place where the incident allegedly occurred because defendant matched the description provided by the girls, including his clothing.

Leavy approached defendant on the sidewalk, informing him that she was a police officer with the Long Branch Police who was investigating the described incident, and that he fit the description provided by the juveniles. She asked defendant where he had been, where he was going, his name, and for identification. While defendant informed Leavy that he had arrived in the City by train, intending to go to a nearby convenience store, he refused to tell her his name or provide identification. After continued questioning, defendant informed Leavy that his first name was Gerald but refused to inform her of his last name. Although defendant conceded that he had identification in his back pocket, he refused to give it to Leavy, becoming belligerent and uncooperative, and began to walk away.

As defendant walked away, Leavy accompanied him "asking him for his full name and a date of birth so that I could confirm his identification through dispatch." Defendant walked approximately thirty feet and stopped. Defendant then removed his wallet from his back pocket, clutched it, and refused to show it to Leavy. After further prompting by Leavy, defendant produced identification, flashing what he later described as his social security card, a Medicare card, and an old civil service card, but did so in a manner that prevented the detective from viewing it.

In the interim, Patrolman Kim arrived at the scene. Because defendant refused to state his last name, refused to properly show identification, and then proceeded to walk away a second time, defendant was placed under arrest for obstruction. After defendant refused to allow the officers to handcuff his hands behind his back and attempted to pull himself away from Patrolman Kim, he was charged with resisting arrest.

Defendant's version of events differed. Defendant acknowledged being approached by Detective Leavy who identified herself as a police officer conducting an investigation in a serious matter for which he met the profile. Although defendant saw that Leavy had a badge, he could not determine whether it was a "security badge or if it was some kind of scam." After Leavy informed defendant that she was going to arrest him if he could not show her identification, defendant told Leavy that he would show her his identification. After removing his wallet, defendant opened it, looked at it to make sure that his identification was visible, and then extended his wallet to Leavy, stating that he could not give it to her because it was the only identification he had. Defendant stated that Leavy looked at his identification long enough to know that it was proper and never asked him for his name because it was on his identification cards.

Defendant further testified that while he was standing with Leavy, a second police officer barreled into him, knocking him completely to the side, causing him to stumble but not fall. According to defendant, the second officer accused him of attacking Leavy. Acknowledging that things were getting a little "agitated," defendant told the police officers that he would defuse the situation by voluntarily accompanying them to the police station. Notwithstanding, the patrolman grabbed him with both hands, causing defendant to resist in order to prevent "having [his] elbow or [his] shoulder dislocated or broken." Defendant was handcuffed, placed into a police car, and taken to the police station, where he stated that he was advised for the first time that Leavy had been investigating an incident where two girls had complained that a man had followed them through a parking lot and had attempted to grab one of them.

The municipal court judge determined that: 1) Detective Leavy had received information that two young girls claimed to have been followed by a man who had attempted to reach out and grab one of the girls; 2) the description provided by the girls of the alleged perpetrator matched defendant, both physically and as to his clothes; 3) Leavy had the right to stop defendant after observing him in the area of the alleged incident; 4) Leavy had identified herself as a police officer and informed defendant of the reason for making the stop; 5) the stop was a mild, investigatory stop with Leavy being "rather accommodating of the defendant;" 6) the officer had reasonable, articulable grounds for making the investigatory stop; 7) Leavy asked defendant his name, but he refused to provide it; 8) defendant refused to provide physical identification and walked away; and 9) defendant resisted arrest. In reaching his determinations, the municipal judge found Leavy's testimony credible, and the defendant's testimony not credible:

At this point before going any further, let me comment upon the testimony of Mr. Heller, which I found to be in some cases not believable, and in other cases, perhaps a little bit exaggerated to say the leas[t].

. . . .

I believe the officer's testimony and not the defendant's testimony that he rather flash[ed] [his identification], if [you] will, rather than really show it to her and she said sir, I need to take it out and take a look at it. Words to that effect. And that the defendant did not do.

On appeal to the Law Division, "giving due deference to the municipal court's judging of the credibility," Judge Uhrmacher found that Detective Leavy had conducted a valid investigatory stop for the purpose of questioning defendant to confirm or dispel that he was the individual who had been reported by the two girls as the man who had followed them and attempted to reach out and grab one of them. The Law Division judge concluded that Leavy had a reasonable and articulable suspicion, justifying the investigatory stop. Moreover, Judge Uhrmacher concluded that defendant had violated the obstruction statute when he failed to comply with Leavy's request, walking away and refusing to provide proper identification, citing State v. Crawley, 187 N.J. 440, cert. denied, ___ U.S. ___, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).

On appeal, defendant argues:

POINT I.

THE OBSTRUCTION AND RESISTING ARREST CHARGES WERE A PRETEXT FOR AN ILLEGAL ARREST (NOT RAISED BELOW).

POINT II.

THE STATE DID NOT MEET ITS BURDEN OF PROOF WITH RESPECT TO EITHER THE OBSTRUCTION OR THE RESISTING ARREST CHARGE APRIL 20, 2007.

The scope of appellate review in this case is limited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). In the Law Division, review is de novo on the record, except for some situations governed by R. 3:23-8(a). The Law Division judge makes a new decision on his or her own, giving due regard to the municipal court judge's opportunity to judge the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). Because the Law Division judge is not in a position to assess the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999). Deference, however, does not mean adherence, and the Law Division judge may reach a different result.

The standard for our review is whether there is sufficient, credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Johnson, supra, 42 N.J. at 162. Like the Law Division, we are not in a good position to judge credibility and should not make new credibility findings. Locurto, supra, 157 N.J. at 470-71. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471.

We have reviewed the record in its entirety based on the arguments presented by defendant and determine that neither of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Uhrmacher in her oral decision of January 12, 2007. Nevertheless, we add the following comments.

Defendant's arguments only have merit if the trial court had accepted his version of events. The municipal court judge found defendant's testimony not credible, and the Law Division judge correctly deferred to the municipal court judge's assessment of the witnesses' credibility. Johnson, supra, 42 N.J. at 157. We are satisfied under the facts as determined by the Law Division, that defendant violated the obstruction statute. Crawley, supra, 187 N.J. at 451-52. Although defendant did not run from Detective Leavy, his continued attempts to walk away during the course of her investigation constituted obstruction, contrary to N.J.S.A. 2C:29-1. Detective Leavy was "lawfully performing an official function," at the time of the investigatory stop. The detective "acted in objective good faith and under color of [her] authority" as a police officer. Id. at 461. Moreover, the detective's instructions to defendant were reasonable and in furtherance of her duties. Therefore, defendant had a correlative duty to obey her instructions. Id. at 460-61. Once arrested for violating the obstruction statute, defendant was required to submit to the arrest, even if he believed the arrest to be illegal. Id. at 453 (citing State v. Mulvihill, 57 N.J. 151, 155-56 (1970)).

Affirmed. The February 23, 2007, order staying the sentences is vacated.

The incident reported by the girls was fictitious. The girls' mother called the police department the night of the incident, informing the police that the older girl had made up the story because she did not want to go to school that day.

(continued)

(continued)

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A-3252-06T5

October 22, 2007