STATE OF NEW JERSEY v. THOMAS SWAYNGIM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0905-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS SWAYNGIM,

Defendant-Appellant.

_________________________________________________________

June 24, 2013

Submitted December 3, 2012 - Decided

Before Judges Graves and Guadagno.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Municipal Appeal

No. 0014-11.

John Scott Abbott, attorney for appellant.

James P. McClain, Acting Atlantic County

Prosecutor, attorney for respondent (Jack

R. Martin, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Following a municipal court trial and a trial de novo in the Law Division, defendant Thomas Swayngim was found guilty of simple assault, N.J.S.A. 2C:12-1(a)(1), and resisting arrest, N.J.S.A. 2C:29-2(a)(1). Defendant was also charged with obstructing the administration of law, N.J.S.A. 2C:29-1(a); however, he was found not guilty of the charge. Defendant raises two issues on appeal. First, the State failed to prove that he "purposely attempted or prevented the police from arresting him." Second, his "actions in his own defense were justifiable in response to the level of force used by the arresting officer." We have considered these arguments in light of the record and the applicable law and conclude they are without merit. R. 2:11-3(e)(2).

In the municipal court, Officer Macready1 of the Atlantic City Police Department testified he was called to the Atlantic City Rescue Mission (the Mission) on October 14, 2010, because defendant was refusing to leave. Macready testified that when he arrived at the Mission, he spoke with defendant and asked him to leave "several times," but defendant refused and "became very combative, [and] belligerent." Macready eventually placed defendant "in an escort hold and began to escort him off the property, telling him that he had to leave." When he was asked to describe the escort hold, Macready said, "[Y]ou grab the person's arm and walk them out."

As Macready was escorting defendant from the building, defendant stated "he wasn't going to leave," and he was "trying to pull away" from Macready. At that point, Officer Moore and another officer arrived as back up. After the officers removed defendant from the Mission, he still refused to leave and approached Macready in an aggressive manner. Macready testified he pushed defendant back to create a "reactionary gap," and defendant "lunged towards [him]" and tried to punch him. Macready countered defendant's punch and a struggle ensued. According to Macready: "[Defendant] was told numerous times to place his hands behind his back and stop resisting arrest. He failed to comply. He was grabbing onto me, throwing punches, kicks, [and] knees." Moore testified he saw defendant punch Macready. Moore also testified he advised defendant that he was under arrest, but defendant did not comply.

Once the officers were able to handcuff defendant, they attempted to place him into the patrol car. However, Macready testified defendant was "stiffening his body and using his body weight to prevent [the officers] from placing him in the rear seat." As a result of the incident, Macready sustained "scraped knees and some scraped hands and a couple bumps," and he experienced some "discomfort."

Defendant also testified. According to defendant, he went to the Mission "to be assigned a bed for the night," but he "was refused." When asked if the officers gave him an opportunity to leave without incident, defendant acknowledged that "the opportunity was when [Macready] told me I need to go now and I need to leave." Defendant testified he was placed in a "choke hold and then [he] was on the ground." Defendant said that when he was on the ground, he "was kneed in the face fifteen times" and suffered "abrasions to [his] face, sprains and strains in [his] neck, and a minor concussion." Defendant also denied he was "kicking and punching" and "flailing [his] body around." Defendant maintained he "was always in compliance" with the officers' directions.

The municipal court judge found that Macready's testimony was "corroborated in large part," and there was "no doubt [defendant] resisted arrest and . . . assaulted the police officer." The court sentenced defendant to five days of community service and a $158 fine for each offense, but the fines were suspended.

On appeal to the Law Division, defendant's attorney argued there was not enough evidence to prove defendant was guilty of resisting arrest because defendant "was pinned on the ground by the officers. He couldn't move. . . . The police officers were all around him." Similarly, defense counsel argued defendant was not guilty of simple assault because he "was not trying to hurt these officers. He was not trying to cause bodily harm."

On de novo review, the Law Division judge deferred to the municipal court judge's credibility assessments. See State v. Johnson, 42 N.J. 146, 161 (1964) (noting that a reviewing court should defer "to those findings of the trial [court] which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case"). The Law Division judge concluded that defendant was guilty of simple assault, because he caused "some level of physical pain" to Macready which is all that is "required to constitute bodily injury." The court also found defendant guilty of resisting arrest, because anything done "purposely to prevent or attempt to prevent a police officer from effecting an arrest" can constitute resisting arrest under N.J.S.A. 2C:29-2(a)(1).

The scope of our review is limited. It is improper for this court to assess the credibility of witnesses and "to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We are limited to determining whether the Law Division findings "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.

As the Law Division judge correctly noted, simple assault is committed when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). "Bodily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). "Not much is required to show bodily injury." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). "'Even the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey Law.'" Ibid. (quoting New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995)).

Additionally, when charged as a disorderly persons offense, resisting arrest has four elements. The four elements require a showing that: (1) Macready was a law enforcement officer; (2) Macready was effecting an arrest; (3) defendant knew or had reason to know Macready was a law enforcement officer effecting an arrest; and (4) defendant purposely prevented or attempted to prevent Macready from effecting the arrest. See Model Jury Charge (Criminal), "Resisting Arrest Flight Not Alleged" (2007); see also State v. Simms, 369 N.J. Super. 466, 470 (App. Div. 2004) (describing the elements of resisting arrest).

The central issue in this case concerns the credibility of defendant and Macready. Both the municipal court judge and the Law Division judge credited Macready's testimony and determined that defendant was guilty of simple assault and resisting arrest. Based on our independent examination of the entire record, we conclude there is sufficient credible evidence to sustain defendant's convictions.

Affirmed.

1 The record does not contain the first name of either Officer Macready or Officer Moore.