STATE OF NEW JERSEY v. RAHIM R. CALDWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1660-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHIM R. CALDWELL,

Defendant-Appellant.

________________________________

March 16, 2011

Submitted: October 25, 2010 Decided:

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0010-08.

Fitzgerald McGroarty, P.A., attorneys for appellant (Michael J. Malinsky, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rahim R. Caldwell appeals from his conviction of disorderly conduct, contrary to N.J.S.A. 2C:33-2a(1), in connec tion with a commotion he created at an animal shelter in Pleasantville. We affirm defendant's conviction and sentence.

On October 25, 2007, someone at the Atlantic County Animal Shelter hit the panic alarm, and the Pleasantville police responded to the scene at approximately 1:15 p.m. Officer David Napolitano was the first officer to arrive. He could hear a man inside the building, screaming profanities. He "was being very loud and aggressive" and yelled, "You f-ing murderers and terrorists."

When Napolitano entered the shelter, he saw that the shel ter personnel had "taken a few steps back" from the counter and appeared scared because they had "wide eyes." They were point ing at defendant. Napolitano spoke to defendant using a normal speaking voice, but defendant "continued to speak in a loud, a very loud manner." According to Napolitano, defendant was being physically and verbally aggressive, although he did not threaten any specific physical harm.

Officer Mike Gazo, who was part of a back-up unit, arrived seconds after Napolitano. Gazo observed defendant "in a heated argument with the employees at the shelter." Defendant was "yelling and screaming at the employees," who were inside the building behind the desk. Gazo could hear the defendant as he was walking up to the building; his screaming was audible through the doors. Defendant was calling the employees "murder ers," "killers," and "terrorists." There were at least four employees behind the desk at the time, as well as two oth ers who were "hiding in the back." Gazo observed that the employees were "visibly shaken." Further, "[t]hey were with drawn, they were frightened. The one employee was visibly shak ing and cry ing." Gazo noted that the employees were "unconsol able [sic]." According to Gazo, defendant made verbal threats and was irate. For example, defendant told others that "he's going to get them, they're murderers, they're terrorists." He told the employees, "It's not over yet, this ain't going to go away."

The officers separated defendant and the shelter employees "to get them apart, to direct attention towards [the officers], [and to] try to calm the situation down." During this time, defendant "kept yelling and cursing at them, calling them ter rorists, killers, murderers." It took the officers about a min ute or two "to calm him down enough to step outside and speak with [the officers] to get his side of the story as to what hap pened." "After a few requests," Napolitano and Gazo were able to get defendant "to walk as far as the entranceway outside of the building right by the doorway."

Once outside, defendant directed his behavior at the offi cers. They asked defendant why he was at the shelter and why he was so upset. Defendant would not tell the officers what had happened. Using a "high, elevated tone," he called the officers "terrorists, murderers, part of the system" and told them "he don't speak to the law." The volume of defendant's voice was "[p]retty close" to what it was when he was inside the shelter. He would not give his name to the police or provide any identi fying information upon their request. Moreover, he refused to leave the property.

Gazo observed that defendant was "uncooperative" and responded with "aggressiveness." He perceived that other cus tomers arriving at the shelter were panicking and "afraid to get out of their cars." When customers drove up to the shelter and entered the parking lot, they stayed in their cars and remained at a distance of twenty to twenty-five feet rather than come near the building.

Defendant "kept pacing side to side, wouldn't talk to [the officers], [and] kept putting his hands in his pocket." The officers did not know what defendant had in his pockets. They had to "physically remove" defendant's hands from his pockets. Gazo felt a "[l]ittle uneasy, not knowing what [defendant] was going to do[ and] what his intentions [were]" as a result of the actions he had observed both inside and outside the shelter. Napolitanoobserved that defendantwas "continuouslyfidgeting . . . hands in and out of his pockets." Defendant was "moving around more or less in one spot," and Napolitano was "unsure as to what his next move may or may not be."

Napolitano considered the fact that defendant had his hands in his pockets to be "a physically dangerous condition." He stated that

in pacing back and forth . . . hands in and out of his pockets, at any point in time [defendant] could have taken one simple step forward, and if he chose to, he could have put his hands on me and that seems to me as aggressive. If you're pacing back and forth in a manner that I . . . cannot control, it appears to me as it could be aggressive.

At one point, the officers learned that defendant's puppy had been euthanized, which the shelter personnel confirmed, stating it was in accordance with shelter regulations.

After the officers "made a determination that [defendant] was destructive, affecting the business, scaring people, scaring clientele, along with employees and [the officers]," the offi cers handcuffed defendant, patted him down and frisked him, and looked for identification. They did not find any weapons. They advised him that he was under arrest for disorderly conduct. According to Gazo, the basis of the arrest was defendant's demeanor and actions that they had observed both inside and outside the shelter.

The municipal court trial was held on January 24, 2008. Defendant represented himself with the assistance of the public defender. Nevertheless, defendant screamed and engaged in at least one outburst during the trial, causing the judge to inform him that he would be escorted from the courtroom if another out burst occurred. According to Gazo, the volume of defendant's in-court outburst was "pretty much equal to" that of defendant's voice on October 25, 2007. Officers Gazo and Napolitano were the only witnesses who testified.

After all the evidence was presented, the municipal court judge observed that screaming and yelling alone were not "any thing of import"; however, "in conjunction with everything else that was going on, it was clear that [defendant] was not being cooperative, that he had no intention of being cooperative with the officers, and that he did not leave the scene." He noted that the officers observed defendant acting aggressively and engaging in "violent behavior toward the staff of the animal shelter." The municipal court judge also found that, after the officers arrived, defendant "continued in a loud and aggressive manner" and "kept the situation going, refused to cooperate with them, [and] kept yelling and screaming at them." He found that the entirety of this conduct violated N.J.S.A. 2C:33-2a(1), which prohibits a person, who "with the purpose to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof," from "engag[ing] in fighting or threatening, or in violent or tumultuous behavior."

The municipal court judge found that defendant's "actions were purposeful, that he purposely did scream and yell, did engage in threatening conduct towards those individuals." He also found that "there's no question that he recklessly created a risk of harm or threatening behavior toward those employees because while I can sympathize with him being upset, . . . [t]his is a situation where it was an ongoing situation where the people on the premises felt the need to call for police assistance[,] and . . . his actions continued even after the officers arrived and then even after they got him to go outside."

The municipal court judge further found "no question" that defendant's conduct interfered with public access to the prem ises. The judge found defendant guilty of violating the disor derly conduct statute. The judge then imposed his sentence, which is not in dispute on appeal.

Defendant filed an appeal with the Law Division, and his sentence was stayed pending appeal. On May 27, 2008, a hearing was held, and defendant's assigned counsel argued that defen dant's conduct of pacing back and forth was not aggressive and did not cause a public disturbance outside the animal shelter. The prosecutor focused on how defendant's conduct as a whole was threatening toward the shelter employees and police officers. In rebuttal, assigned counsel did not dispute that defendant yelled and called the employees murderers, killers, and terror ists. However, he argued that the record did not establish what the female employees felt at the time.

The Law Division judge made findings of fact and based his decision upon the record and the officers' testimony, giving due deference to the municipal court judge's findings of fact and witness credibility. The Law Division judge found defendant guilty of violating N.J.S.A. 2C:33-2a(1), specifically finding that "defendant's behavior can be readily described as tumultu ous or threatening in a loud and profane and agitated manner." Specifically, he found that defendant

called the animal shelter employees terror ists and murderers . . . . [T]his was not a brief episode. [Defendant] had . . . ranted long enough for the police to get there and he did indicate that he would get them and this ain't over. When Officers Gazo and Napolitano arrived, [defendant] directed his tirade at them also and refused to cooper ate. His conduct also recklessly created the risk of public inconvenience, annoyance, or alarm. These events occurred in a public place at midday and the officers testified that when they arrived they could hear the commotion from outside the shelter. Although there were patrons in the parking lot, they refused to leave their cars. As for inside the shelter, the employees were taken aback and they were . . . frightened andappeared to beupset and setoff the .. . alarm button to get the police or help there. Oneof theemployees wasobserved .. . crying. In my opinion, this conduct was uncalled for.

The Law Division judge found that defendant "did cause alarm in the minds of the people to whom his remarks were directed and annoyance would be putting it mildly." He noted that frightened patrons "apparently refused to leave their cars because they saw the tumult that was going on." He also found that there were threats, "either direct or indirect." Although defendant did not assault anyone physically, "anybody that was being hollered at like that would be, in my opinion, annoyed and alarmed at the very least."

The judge also addressed defendant's argument that the dis orderly person statute is unconstitutionally vague. He found that "tumultuous behavior is understandable English, which would be understood by a person of common intelligence, . . . but if [defendant's conduct] wasn't tumultuous behavior, then it cer tainly still comes within the parameters of the statute; that is,. . .causing of public inconvenience, annoyance, or alarm . . . and engaging in fighting or threatening or in violent or tumultuous behavior." In sum, he concluded that "defendant was out of control." He sentenced defendant to pay the same fines and penalties and filed an order memorializing his decision on June 11, 2008.

Defendant raises two issues for our consideration:

POINT I - THE DECISION OF THE LOWER COURT WAS IN ERROR BECAUSE THE STATE FAILED TO PROVE ALL THE ELEMENTS OF THE CHARGE AGAINST DEFENDANT BEYOND A REASONABLE DOUBT TO SUSTAIN A CONVICTION.

POINT II - THE DECISION OF THE LOWER COURT WAS AN ERROR WITH REGARD TO THE CONVICTION OF DEFENDANT SINCE N.J.S.A. 2C:33-2[a](1) IS UNCONSTITUTIONALLY VAGUE.

Usually, "[a]ppellate review of municipal court convictions is 'exceedingly narrow.'" State v. Oliver, 320 N.J. Super. 405, 421 (App. Div.) (quoting State v. Locurto, 157 N.J. 463, 470 (1999)), certif. denied, 161 N.J. 332 (1999). Following a judg ment of conviction in municipal court, appeals are first made to the Law Division, which reviews the matter de novo on the record below. R. 3:23-8(a). The Law Division judge must "give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). Appellate "review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Divi sion judge, not the municipal court." Ibid. However, "[a] trial court's interpretation of the law and the legal conse quences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A misapplication of the statute presents a question of law subject to our de novo review.

Defendant argues that the State did not prove all of the ele ments of the offense. Rather, "the officers upon entering the animal shelter at most observed an upset individual pained by the animal shelter[']s euthanization of his dog, yelling and screaming at the employees over his loss." Further, he main tains that the officers "did not feel defendant's actions inside warranted any charges" and that pacing and refusing to provide the officers with information did not violate the stat ute. At most, he urges, he was merely upset about the death of his puppy.

The State responds that each element of disorderly conduct as defined by N.J.S.A. 2C:33-2a(1) was proven beyond a reason able doubt. It argues that defendant is attempting to mischar acterize his conduct as mere pacing and refusing to provide identification. The State urges that defendant "did far more than fail to answer questions."

In order to prove a violation of N.J.S.A. 2C:33-2a(1), the State must establish that defendant, "with purpose to cause pub lic inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] . . . [e]ngage[d] in fighting or threatening, or in violent or tumultuous behavior." (Emphasis added). N.J.S.A. 2C:33-2a defines "public" to mean "affecting or likely to affect persons in a place to which the public or a sub stantial group has access; among the places included are .. . places of business." N.J.S.A. 2C:33-2.

Defendant urges that he did not act purposefully, but the Law Division judge only found that he acted recklessly. Reckless conduct requires a showing that a person

consciously disregard[ed] a substantial and unjustifiable risk that the material element [of an offense] exist[ed] or [would] result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its dis regard involve[d] a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

[N.J.S.A. 2C:2-2b(3).]

Defendant cites State v. Stampone, 341 N.J. Super. 247 (App. Div. 2001), and one of our unpublished decisions in sup port of his position that his conviction should be overturned.1 In the Stampone case, we reversed a conviction for disorderly conduct under N.J.S.A. 2C:33-2a(1), id. at 249, because the defendant's "testy exchange" with a police officer "had no capacity to cause public inconvenience, public annoyance or public alarm." Id. at 255.

There, after an officer approached the defendant, who was parked in front of his girlfriend's home in a residential area, the defendant twice refused to provide his last name. Id. at 249-50. Subsequent to retrieving his license from the trunk of his car, the defendant got back inside his car and reached for something on the passenger side of the car. Id. at 250. At that point, the officer opened the driver's door, but the defen dant grabbed it and slammed it shut, almost hitting the offi cer's legs. Ibid. The officer then grabbed and pulled the defendant's arm, and the defendant cursed at the officer. Ibid.

We concluded that the defendant "was not fighting, threat ening, nor violent," id. at 254, and his slamming the car door and nearly hitting the officer was not "tumultuous" conduct pursuant to the statute. Id. at 255. Further,

[t]here was no indication that passers-by were noticing any of this or congregating or, indeed, that such persons were even pre sent. Nor was there anything inherent in defendant's conduct as to make it likely that his colloquy with [the officer] would cause public inconvenience, annoyance or alarm. And, of course, there was really no evidence that defendant acted with a purpose to cause such public reactions.

[Ibid.]

Thus, the "entire incident was an unfortunate example of a police officer overreacting to innocuous conduct and a citizen treating an officer with rudeness approaching insolence that only aggravated the situation." Id. at 251-52.

The facts of Stampone are distinguishable from the present matter as to each element of N.J.S.A. 2C:33-2a(1). There, we applied a dictionary definition of "tumult": "a disorderly and violent movement, agitation or milling about of a crowd, usually with great uproar and confusion of voices, a noisy and turbulent popular uprising, a riot." Stampone, supra, 341 N.J. Super. at 255 (citing Webster's Third New International Dictionary 2462 (1993)); see also United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 67 (App. Div.) (noting that "tumult" is "defined as either 'uproar' or 'violent agitation of mind or feelings'" and finding that "[e]xcessive noise could qualify as an uproar or a violent agitation to the victim" (quoting Webster's New American Dictionary 555 (Smithmark 1995))), certif. denied, 170 N.J. 390 (2001).

First, the Stampone case is distinguishable because we found that the defendant did not engage in threats, fighting, or violent behavior toward the officer; his slamming of the car door and refusal to provide his name did not rise to the requi site level of "tumultuous" conduct under the statute. Stampone, supra, 341 N.J. Super. at 249-50, 254-55. Here, however, the defendant did much more than yell, pace, and refuse to cooper ate. As the Law Division judge found, defendant's conduct could be "readily described as tumultuous or threatening in a loud and profane and agitated manner." For example, defendant called the shelter employees terrorists and murderers, and "this was not a brief episode." In fact, he "ranted long enough for the police to get there." The commotion could be heard from outside the animal shelter, and defendant continued his "tirade" and "refus[al] to cooperate" when taken outside by the officers. As a result of defendant's conduct, the employees were frightened and upset, setting off the alarm button to summon the police for help. Patrons "apparently refused to leave their cars because they saw the tumult that was going on." Defendant also caused the officers to be concerned for their safety because he kept putting his hands in his pockets despite being instructed not to do so. In sum, "defendant was out of control." Defendant cer tainly displayed a "violent agitation of mind or feelings" and created a "tumult" with his continued ranting and "[e]xcessive noise." United Prop. Owners Ass'n of Belmar, supra, 343 N.J. Super. at 67 (citation and internal quotation marks omitted).

Second, in Stampone, there was insufficient evidence that the defendant caused public inconvenience, annoyance, or harm. Stampone, supra, 341 N.J. Super. at 255. Here, however, the incident occurred at an animal shelter, which is a public place of business, and both shelter personnel and patrons were pre sent. See N.J.S.A. 2C:33-2. The events at issue occurred mid day, and the officers' testimony indicated that employees were visibly shaken, crying, and had activated the panic alarm. Fur ther, once defendant was brought outside the shelter and contin ued his ranting, patrons remained in their cars and did not approach the shelter's entrance. Both judges agreed that defen dant's actions and language at a minimum caused public annoyance and alarm. This evidence was more than sufficient to establish the statutory element of "public inconvenience, annoyance or alarm." N.J.S.A. 2C:33-2a.

Third, in Stampone, we found that the defendant did not act purposely or recklessly. Stampone, supra, 341 N.J. Super. at 255. Here, defendant contends that his conduct was not purpose ful but, as we have already mentioned, the Law Division judge found that defendant's actions were "reckless." That is, he "consciously disregard[ed] a substantial and unjustifiable risk that the material element [of the offense] exist[ed] or [would] result from his conduct." N.J.S.A. 2C:2-2b(3). Specifically, he knew that he was in a public place, an animal shelter, and knew that he was engaging in threatening behavior, but completely disregarded the possibility that his conduct would cause public annoyance, inconvenience or harm. The Law Division judge's findings that defendant disregarded the impact of his behavior on shelter staff and customers while he "ranted long enough for the police to get there" satisfy the definition of reckless conduct. N.J.S.A. 2C:33-2a(1). So, too, does defen dant's conduct outside the shelter because he consciously disre garded the possibility that his conduct was causing public annoyance or inconvenience to other patrons of the animal shelter, who remained in their cars while the commotion continued.

These findings of fact amply support the conclusion that defendant violated N.J.S.A. 2C:33-2a(1). See Johnson, supra, 42 N.J. at 161-62. Because the record below establishes sufficient evidence to support the Law Division judge's findings, the State has beyond any reasonable doubt proven each element of the disorderly persons charge.

After carefully reviewing the record in light of the writ ten arguments advanced by the parties, we conclude that defen dant's remaining argument that the statutory term "tumultuous" is unconstitutionally vague is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

A

1 Our unpublished opinions do not constitute precedent and may not be cited by us. R. 1:36-3. As a consequence, we will not discuss the unpublished decision cited by defendant.