STATE OF NEW JERSEY v. COSMO MANGIOCCO, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6455-06T46455-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COSMO MANGIOCCO, III,

Defendant-Appellant.

___________________________________

 

Argued June 24, 2008 - Decided

Before Judges Skillman and Winkelstein.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. App. 03-07.

Richard F. Klineburger, III, argued the cause for appellant (Klineburger & Nussey, attorneys; Mr. Klineburger, III, on the brief).

John C. Wright, Assistant Prosecutor, argued the cause for respondent (John T. Lenahan, Salem County Prosecutor, attorney; Mr. Wright, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for obstruction, in violation of N.J.S.A. 2C:29-1(a), and unsafe operation of a motor vehicle, in violation of N.J.S.A. 39:4-97.2.

The incident upon which defendant's convictions were based occurred at his home in Carneys Point Township around midnight on September 16, 2006. Two police officers were dispatched to a street near defendant's home in response to a 911 call reporting that two men were assaulting a woman. However, when the officers arrived at the scene of the reported assault, they did not observe anyone there.

As the officers were driving around the area, one of them observed three men walking along the street. He stopped the men and asked them whether they had observed anyone fighting. The men responded that they had seen a man pull a woman into defendant's house. The officers knew that defendant, who is also a Carneys Point police officer, resided in the house the three men had pointed out to them together with his girlfriend.

The officers knocked on the door of the house and identified themselves. The light on the front porch was then turned off, and defendant screamed at the officers, "Get the fuck out of here. There's nothing wrong." However, the officers said that they would not leave until they had an opportunity to speak to defendant's girlfriend, Rhoda Owens. Sometime thereafter, Owens emerged from the house carrying her baby. The officers spoke to and examined Owens, as a result of which they were satisfied that she was not injured or in any danger. As the officers were speaking to Owens, defendant came out of the house and yelled to her to stop talking to them and get back into the house. Defendant also yelled out obscenities to the officers and told them to get off his property. Defendant then went back into the house and slammed the door. Shortly thereafter, defendant came back out of the house, got into his pick-up truck, noisily revved the motor, "peeled" the wheels, and sped away. The officers did not follow him.

In finding defendant guilty of obstruction based on his de novo review of the municipal court record, the Law Division judge stated:

I don't get the sense, regardless of your cross-examination on that point, that their investigation was necessarily complete when the defendant told her to get back into the house, to not talk to them further, . . . I infer that from the -- all that was said and done at that time, that he did that in a manner of directing her by way of order, that it was a demand, or an order of a domestic partner, if you will, for that person to continue -- to discontinue their

-- their cooperation with the police investigation.

It doesn't have to actually terminate the investigation for the defendant to be found guilty[.]

. . . I find that he did prevent them

-- or attempt to prevent them from performing their official function, that is the investigation of this, by intimidation, and I find that he did it by intimidation, force, violence, physical interference, or obstacle. And, I find that he was attempting to place an obstacle in their path of the investigation, by ordering Ms. Owens to return to the house, and not to cooperate with them.

I

N.J.S.A. 2C:29-1(a) provides in pertinent part:

A person commits an offense if he 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.

Initially, we note that the State argues, and that the Law Division ruled, that defendant violated N.J.S.A. 2C:29-1(a) by "intimidation" of Owens, thereby "prevent[ing]" the investigating officers from completing their investigation of defendant's possible act of domestic violence. The State does not argue that any of defendant's other actions, before he told Owens to go back into the house, constituted an obstruction of an official function within the intent of N.J.S.A. 2C:29-1(a).

Although we agree with the premise of the State's argument -- that the intimidation of a witness during the course of a police investigation could constitute a violation of N.J.S.A. 2C:29-1(a) -- we conclude that defendant's conduct did not obstruct the police investigation. When defendant told Owens to go back into the house, the police had already spoken to and examined her and had concluded that they were not confronted with a domestic violence situation.

One of the investigating officers, Sergeant Gary DiPietro, gave the following testimony on cross-examination:

Q. Okay. And during this time you actually -- beyond the fact -- once that you saw there was no signs of physical abuse to the woman or the baby, your investigation was pretty much done at that point; correct?

A. That's correct.

Q. Okay. So did you need to take a picture of her?

A. No.

Q. Did you need to take fingerprints from her or anything?

A. No.

Q. Okay. You were done. Once you saw that she was okay, your investigation was done; correct?

A. That's correct.

. . . .

Q. Okay. At this point, you already checked to see if she had any physical abuse; correct?

A. We were still speaking with her when he came out.

Q. Okay. What did you ask her after this?

A. When he -- we were done with her but he was --

Q. So you were done with her?

A. -- going off. We were done with her at that moment.

Q. Thank you. Was there anything else that you needed to do before closing out your investigation on that day? Did anything else need to be done at that scene at that point?

A. Well, no.

Similarly, the other investigating officer, Corporal Gerard Krivda, testified:

Q. Okay. And did you complete your investigation of Ms. Owens? Was there something more that you wanted to do with her that you didn't do?

A. At that point, she wasn't injured. She said she didn't want to sign complaints. She was told -- telling the Sergeant this. She said -- she stated there was just a verbal argument inside.

Q. Okay.

A. And she didn't want nothing done.

. . . .

Q. After my client left, did you go back to the house and ask her more questions?

A. No, I did not.

Q. Did you go back to the house and ask her again if she wanted to come down to the police department?

A. No, I did not.

Q. Did you go back to the house and ask her if she wanted to sign a restraining order against my client?

A. No, I did not.

Q. Did you go back to the house and ask her if she felt as though she was placed in fear of my client?

A. No, I did not.

Q. Okay. So at this point, while my client's not even around anymore so there can be no allegation that my client isn't in some way intimidating her or in some way impeding your investigation. You have an opportunity to go back and talk to this victim by herself and you don't go back and take that opportunity; correct?

A. Yes, sir.

Thus, defendant's direction to Owens to go back into the house did not prevent the investigating officers from fully questioning her and completing their investigation. In fact, it is unclear from the record whether Owens actually went back into the house. Under these circumstances, we conclude that defendant's conduct did not rise to the level of a violation of N.J.S.A. 2C:29-1(a). See State v. Camillo, 382 N.J. Super. 113, 116-22 (App. Div. 2005).

II

N.J.S.A. 39:4-97.2(a) provides that "it shall be unlawful for any person to drive or operate a motor vehicle in an unsafe manner likely to endanger a person or property." In finding defendant guilty of this motor vehicle offense, the Law Division judge stated:

[H]e did operate that motor vehicle in an unsafe fashion, to-wit, the testimony was that he revved his engine, spun his tires, causing them to lose traction with the road, and the tires to smoke, and that he sped away. It -- I find that it was a residential neighborhood, that it created a -- the potential for causing damage to persons or property because of the nature of where it occurred, the manner in which the vehicle was operated, and I find him guilty with respect to a violation of that statute.

We conclude that defendant's conviction of a violation of N.J.S.A. 39:4-97.2(a) is not supported by the record because the evidence was insufficient to support a finding that defendant's operation of his pick-up truck was "likely to endanger a person or property." Defendant drove away from his home around midnight, when there were no persons around his truck or on the street. There was no testimony that he exceeded the speed limit. Moreover, although one of the officers testified that defendant's tires were spinning and "breaking traction," he did not see defendant's truck "fishtail" or any loss of control of the vehicle. Thus, it appears that defendant simply made a noisy exit from the scene of the confrontation with his fellow officers and not that he operated his truck in an unsafe manner.

Accordingly, defendant's convictions for violations of N.J.S.A. 2C:29-1(a) and N.J.S.A. 39:4-97.2(a) are reversed.

(continued)

(continued)

9

A-6455-06T4

July 16, 2008