STATE OF NEW JERSEY v. ANA HERRERA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2418-06T42418-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANA HERRERA,

Defendant-Appellant.

________________________________________________________________

 

Argued March 5, 2008 - Decided

Before Judges Cuff, Lisa and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 23-2006.

Ida Cambria argued the cause for appellant.

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

Defendant, Ana Herrera, appeals from her conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of obstructing administration of law, N.J.S.A. 2C:29-1a, for which she was sentenced to pay a $350 fine, together with costs and mandatory assessments. Defendant argues:

I. THE DECISION OF THE LAW DIVISION JUDGE MUST BE REVERSED AS THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD TO UPHOLD THE FINDINGS OF THE LAW DIVISION.

II. THE COURT ERRED IN FAILING TO DISMISS THE CASE AGAINST THE DEFENDANT/APPELLANT FOR VIOLATION OF HER CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL AND TO CONFRONT WITNESSES AGAINST HER.

A. SPEEDY TRIAL AND RIGHT TO CONFRONT WITNESSES.

B. DISCOVERY AS IT RELATES TO RIGHT TO CONFRONT WITNESSES.

III. THE CONVICTION MUST BE DISMISSED AS THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD FOR THE LAW DIVISION JUDGES TO FIND THAT THE STATE PROVED THE ELEMENTS OF THE OFFENSE AGAINST THE DEFENDANT BEYOND A REASONABLE DOUBT.

We reject these arguments and affirm.

On June 26, 2002, defendant, in the company of another woman and Tony Amador, was seen walking up to the corner of Livingston Avenue and Comstock Street in New Brunswick. A wake was being held at a funeral home located on Livingston Avenue. Police believed the deceased was a gang member who had been killed by members of a rival gang. Because of the potential volatility of the situation, police were assigned to monitor the wake.

Sergeant Royce Cradic recognized Amador and defendant. Cradic believed that Amador was associated with the rival gang, and Cradic was aware of an outstanding contempt of court warrant for Amador. Cradic confirmed with dispatch that the warrant was still outstanding, and he broadcasted instructions by radio for other officers in the area to arrest Amador.

Officers Hayes and Santiago approached Amador and informed him they were arresting him on the warrant. As Hayes was placing Amador under arrest, defendant became "pretty hysterical, verbally abusive to [the officers], and yelling and screaming," using profanities. Defendant remained at close quarters with the officers, continuing to scream and yell at them, and continuing to disobey their commands to leave the area. After defendant got too close to the officers, Hayes directed her to get back and move away. Defendant disobeyed Hayes' commands and remained "an arm length, two arm lengths away" from the arresting officers.

Officer Starzynski and Sergeant Knighton arrived at the scene. They stepped between defendant and the arresting officers and asked defendant to back up and leave the area. Defendant continued advancing towards the officers and yelling and gesturing with her hands. Amador was placed in a patrol car. In response to the officers' repeated warnings, defendant at one point exclaimed, "lock me up or arrest me then." Starzynski placed defendant under arrest, handcuffing her and placing her in a patrol car.

On that date, Starzynski signed a complaint charging defendant with obstruction of administration of law "by interfering with an investigatory stop of another individual by refusing to leave the area after being told to do so and attempting to [make] contact with the detainee while also being told to refrain from [sic]." Three months later, on September 23, 2002, defendant signed a criminal complaint against Starzynski for an indictable assault charge and the petty disorderly persons offense of harassment. Defendant also filed a civil action in federal court against the City of New Brunswick and Starzynski based upon this incident.

Over the ensuing months, the charges against defendant were not promptly scheduled for trial in the municipal court. A number of events combined to delay the scheduling for trial. Because the charges against Starzynski included an indictable charge, the county prosecutor had to review the matter to determine whether to present it to the grand jury or to downgrade it and remand it to municipal court for disposition. The prosecutor ultimately chose the latter course. Because of defendant's allegations regarding Starzynski's conduct, the New Brunswick police department conducted an internal affairs investigation. Because Starzynski was a defendant, the matter could not be tried in the New Brunswick Municipal Court but had to be transferred to another jurisdiction. For a time, municipal court officials apparently lost track of the file.

The case was transferred to the Highland Park Municipal Court on February 27, 2004. During this time frame, defense counsel had made a number of discovery requests, covering, for example, audio tapes, video tapes, and information pertaining to the internal affairs investigation of this incident and also internal affairs records pertaining to Starzynski from previous unrelated incidents.

When all of the demanded materials were not furnished, defendant filed a motion for dismissal based upon the State's failure to provide discovery. The motion was heard on April 20, 2004. Defendant did not move to dismiss the charges because she was denied a speedy trial, and, in the course of oral argument, defense counsel did not argue that her client's right to a speedy trial was being denied, that defendant was prejudiced by the delay, or that an immediate trial was requested. Defendant did urge that if the charges were not dismissed for a discovery violation, her alternative request for relief was that the judge issue "an order that gives them a finite amount of time to provide the basic Discovery." Defense counsel acknowledged that with respect to the "IA material both as to this incident and as to past incidents involving Officer Starzynski, the Court will require me to make my application before [the assignment judge of Middlesex County] unless I can obtain consent of City Counsel and so on and so forth." The municipal judge denied the motion to dismiss the charges but did set a discovery order and directed that defense counsel promptly file her application with the assignment judge for the internal affairs documents she was seeking. Defendant filed the application, and on July 26, 2004, the assignment judge issued an order denying defendant's request for internal affairs documents pertaining to the unrelated incidents.

The consolidated actions encompassing the complaint against defendant and defendant's complaint against Starzynski came on for trial on May 3, 2005. We have been furnished with no transcripts during the intervening period between April 20, 2004 and May 3, 2005. It is unclear as to what caused any further delay during that period. At the outset of the May 3, 2005 proceeding, the municipal judge commented: "This matter has come before me on numerous times since its inception when it was transferred here from New Brunswick. We handled discovery applications, discovery questions, etc. and I believe we are now ready to start the trial." Thus, it appears there was ongoing pretrial activity during the intervening period, but the record is not specific in that regard.

The trial could not be completed in one court session. Four attorneys were involved in the case, and the municipal judge encountered significant difficulties in rescheduling adjourned dates, receiving many requests for further adjournments, including from defense counsel. The trial stretched out over ten months, with sessions conducted on May 3, June 28 and July 26, 2005 and February 7, March 7 and March 8, 2006. The witnesses at trial were Cradic, Hayes, Knighton, the head of the internal affairs unit, Amador and defendant. Starzynski exercised his Fifth Amendment right and refused to testify. Santiago was no longer employed by the New Brunswick police department. Defendant subpoenaed him and he attended one trial proceeding but did not testify at that time. He did not appear at subsequent proceedings, and, although defendant reserved her right to seek to enforce the subpoena, she apparently took no further action in that regard.

On March 8, 2006, the municipal judge announced his decision. He found defendant guilty of the obstruction charge and found Starzynski not guilty of harassment and simple assault. On March 15, 2006, the judge imposed the sentence we have previously mentioned.

On April 4, 2006, defendant filed a notice of appeal to the Law Division. Following a trial de novo on the record, Judge Venezia issued a comprehensive and well-reasoned decision on September 28, 2006. She found defendant guilty and imposed the same sentence as had been previously imposed in municipal court. The judge entered a final order memorializing the conviction and sentence on October 18, 2006. This appeal followed.

Judge Venezia rejected defendant's speedy trial argument, concluding that, although there were lengthy delays, sufficient reasons were provided to explain the delays, and defendant failed to demonstrate "any actual and/or substantial prejudice" because of the delays. Further, characterizing defendant's April 20, 2004 motion to dismiss as an assertion of defendant's speedy trial right, the judge noted that twenty-two months elapsed from the signing of the complaint until that time.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is imposed on the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967). The test governing one's right to a speedy trial was set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101, 116-19 (1972), adopted by the New Jersey Supreme Court in State v. Szima, 70 N.J. 196, 200-02, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976), and later reaffirmed in State v. Townsend, 186 N.J. 473, 487 (2006). This test applies to delays in municipal court prosecutions. See State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007); State v. Fulford, 349 N.J. Super. 183, 189 (App. Div. 2002); see also Pressler, Current N.J. Court Rules, comment on R. 7:8-5 (2008).

In determining whether a defendant has been deprived of the right to a speedy trial, the court must consider: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant. Barker, supra, 407 U.S. at 530-33, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at 116-19. No single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Id. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Rather, each factor is interrelated and must be considered in light of the relevant circumstances of each case. Ibid.

Defendant argues that the inordinate delay in scheduling the case for court was not reasonably necessary. She argues she was prejudiced because she was unable to call Santiago as a witness due to his "unavailability" resulting from the fact that he was no longer employed by the New Brunswick police department. She also argues, without specificity, that the court limited her ability to cross-examine witnesses whose recollection of the incident was by that point three years old.

We agree with Judge Venezia's analysis and conclusion. The State concedes, and we agree, that this case should never have taken nearly this long to be concluded. However, this is not a situation where the State was dilatory and the case sat idly for an extended period of time. Events were occurring, some at the behest of defendant, that required additional time. We also find it very significant that if defendant's motion to dismiss for a discovery violation can even be characterized as an assertion of her speedy trial right, that assertion did not occur until twenty-two months after the complaint was issued. Indeed, characterizing the motion as an assertion of the right to a speedy trial is generous to defendant.

Most importantly, we perceive no demonstrable prejudice to defendant as a result of the delay. The fact that Santiago was no longer a police officer did not render him "unavailable." He had not died or left the jurisdiction, and his whereabouts were not unknown. Indeed, he was subpoenaed and appeared at one session of the trial. The record simply does not support defendant's claim that the delay deprived her of the ability to call Santiago as a witness. Furthermore, there is nothing in the record to suggest that Santiago's testimony would have been favorable to defendant.

We find unpersuasive defendant's argument that she was unable to cross-examine the State's witnesses about prior statements they made during the internal affairs investigation. Defendant references her attempt to cross-examine Cradic about a prior inconsistent statement he made. Presumably, defendant is arguing that she was prevented from demonstrating Cradic's memory loss, which would be relevant to the issue of prejudice. Our review of the record in light of the particular arguments advanced by defendant on this point lead us to conclude that there was no prejudice. Cradic was not one of the responding officers. Therefore, his precise recollection of events was of little value. We also note that defendant was able to cross-examine Cradic on the inconsistency and that the prior statement was introduced into evidence. Defendant does not reference any other inconsistencies between officers' trial testimony and prior statements in support of her argument.

Accordingly, we conclude that there is no basis for reversal based upon an alleged violation of defendant's right to a speedy trial.

We next address defendant's argument that there was insufficient evidence in the record to support her conviction. N.J.S.A. 2C:29-1a provides that a person is guilty of obstructing administration of law who "purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act." Defendant argues that the evidence failed to show that she "physically interfered" with the arrest of Amador. We do not agree.

In State v. Hernandez, 338 N.J. Super. 317, 323-24 (App. Div. 2001), we considered whether the defendant's guilty plea to N.J.S.A. 2C:29-1a was supported by a sufficient factual basis. Defendant said the police would not let him go into his house while the police were arresting his brother and they directed him to leave the area; he continued to curse at the police, did not leave the area, and did not follow instructions from the police; he was trying to get to his brother during the course of his brother's arrest, the police told him to leave, and he would not leave. Ibid. We were satisfied that the factual basis was adequate. Id. at 324.

In State v. Camillo, 382 N.J. Super. 113, 116-121 (App. Div. 2005), we canvassed the recent case law, since the enactment of the Criminal Code in 1979, dealing with this offense in its present form, and concluded that one of the means of obstruction enumerated in N.J.S.A. 2C:29-1a must be proven as an element of the offense. We discussed Hernandez and concluded that the conduct of the defendant "constituted a physical act by the defendant-the refusal to leave the scene." Id. at 121. Thus, the failure of the defendant to leave when ordered to do so constituted a physical act and involved physical interference with the officer's orders. Ibid.

That is the situation here. Defendant did obstruct the police in making the arrest of Amador, by "physical interference." Her advancing towards the officers, cursing and yelling at them, waving her arms, remaining in close quarters with them, and refusing to back off or leave the area as they commanded, were physical acts.

On de novo review, Judge Venezia applied the correct standard by making her own findings of fact based upon 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, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). The judge's findings of fact were substantially as we have recited them. We are satisfied that her findings are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with those findings. See Johnson, supra, 42 N.J. at 162. We further agree with Judge Venezia's legal analysis and conclusion that all elements of the offense were established, including obstruction by "physical interference."

Defendant also argues that the proofs were deficient because of a failure to prove purposeful conduct by defendant. In support of this argument, defendant points out that the police characterized her behavior as hysterical. From this, we are asked to conclude that defendant was incapable of acting purposefully. We reject the argument, which we find to lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Finally, we address defendant's remaining two arguments. She argues she was denied the right to confront witnesses against her because Starzynski did not testify. She further argues that she was wrongfully denied discovery of the internal affairs records pertaining to the prior unrelated incidents. We find no merit in these arguments. Defendant never objected to a joint trial, and Starzynski, as a defendant, plainly had the right to refuse to testify. As to the internal affairs records, we do not have a complete record of the proceedings before the assignment judge, which deprives us of the ability to fully analyze defendant's argument. Nevertheless, considering that Starzynski did not testify, as a result of which his credibility was not an issue, we fail to see how reports pertaining to unrelated incidents involving Starzynski could have been relevant in this trial. Defendant's guilt or innocence was predicated upon her conduct in response to the various officers present at the scene, and not on Starzynski's conduct towards her in arresting her. These arguments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.
 

Misspelled in the transcript as "Craddock."

Patricia Bombelyn represented defendant in relation to the obstruction charge against her. Linda Smink represented defendant in relation to the charge against Officer Starzynski. See State v. Storm, 141 N.J. 245 (1995) (private attorney can prosecute complaint in municipal court if there is a conflict of interest between prosecutor and complainant). Lawrence Bitterman represented Starzynski in relation to the charge against Starzynski. And Philip George was the municipal prosecutor who prosecuted the claim against defendant.

(continued)

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A-2418-06T4

March 24, 2008