STATE OF NEW JERSEY v. ERICK D. SHUTE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERICK D. SHUTE,

Defendant-Appellant.

__________________________________________________

January 13, 2014

 

Submitted December 17, 2013 Decided

 

Before Judges Messano and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 11-05-00269.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

The Salem County grand jury returned Indictment No. 11-05-00269, charging defendant Erick D. Shute with fourth-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5), and third-degree resisting arrest, N.J.S.A. 2C:29-2a. (Da1-2) After denying defendant's motion to dismiss the indictment, the matter proceeded to trial. The jury was unable to reach a verdict on the aggravated assault charge.1 It convicted defendant of resisting arrest, answering affirmatively a specific interrogatory that defendant "did purposely attempt to prevent a law enforcement officer . . . from effecting a lawful arrest[.]" However, the jury was deadlocked as to whether, in resisting arrest, defendant created a substantial risk of physical injury to any law enforcement officer.

After denying defendant's motion for a new trial, the judge sentenced defendant to time served, 194 days, and imposed appropriate financial penalties. The judgment of conviction indicated the conviction for resisting arrest was a fourth-degree crime. 2

Defendant raises the following points on appeal:

POINT I

 

DEFENDANT'S MOTION TO DISMISS WAS DENIED IN ERROR BECAUSE THE ARREST WHICH LED TO THE INDICTABLE OFFENSES WAS UNLAWFULLY PREDICATED ON THE SOLE BASIS OF TITLE [3]9 VIOLATIONS

POINT II

 

DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE JURY'S IMPROPER CONSIDERATION OF A LESSER-INCLUDED OFFENSE OF RESISTING ARREST WAS ERRONEOUSLY DENIED AS IT WAS RENDERED AGAINST THE W[EI]GHT OF THE EVIDENCE

 

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction. However, the State concedes that the judge improperly sentenced defendant for a fourth-degree crime even though he was convicted of a disorderly persons offense. We therefore remand the matter to the judge for entry of an amended judgment of conviction.

I.

On March 23, 2011, defendant visited the Pennsville police department, as he later testified, intending to sign a "peace treaty" with the department, permitting defendant to operate his automobile without regard to State licensing and registration requirements. When rebuffed by the desk officer, defendant left the building, and patrolman Harry Wariwanchik observed him leaving the municipal parking lot. Defendant approached Wariwanchik's police car and asked him to "read some documents," but the officer refused, and defendant returned to his car.

Patrolman Michael Gibison observed defendant's car as it was exiting a parking space. He noted it had no license plate, and instead had a "Don't Tread on Me" sticker in its place. Gibison also determined through his mobile data terminal that defendant's license was revoked. Gibison initiated a traffic stop with Wariwanchik assisting.

Defendant rolled his window down approximately three to four inches. Gibison asked defendant for his credentials, but defendant continuously refused. Defendant, who was recording the conversation with a small tape recorder on his dashboard, told the officers that he was exercising his free will, and they lacked any authority to stop him. Eventually, Gibison informed defendant he was under arrest and attempted to reach through the car window to unlock the door. Defendant raised the window on Gibson's arm. The officers, together with two other officers who came on scene by foot from the police station, were able to unlock the car door, remove defendant and place him under arrest. The incident was recorded by Gibison's vehicle's dashboard video camera, and the recording was played for the jury.

Defendant testified. He acknowledged that he did not produce his driving credentials when asked, but he denied ever raising the window and trapping Gibison's arm. Defendant repeatedly asserted that he did not intend to injure anyone and was attempting to peacefully redress his grievances with the police department and its enforcement of the Motor Vehicle statutes.

II.

A.

Before trial, defendant moved to dismiss the indictment, arguing that his arrest was illegal because it stemmed from a motor vehicle violation. He essentially made the same argument during his post-verdict motion for a new trial. In both instances, the judge denied the applications, concluding the arrest was not illegal, and even if it was, any illegality was not a defense to the resisting arrest charge.

Defendant reiterates his arguments before us.3 We conclude they lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

State v. Pierce, 136 N.J. 184 (1994), upon which defendant relies, "dealt with a motor vehicle statute, N.J.S.A. 39:5-25, that authorize[d] arrests or issuance of a summons for certain traffic offenses committed in the presence of the arresting officer without 'suggest[ing] whether arrest or summons [was] appropriate' in respect of a specific violation." State v. Dangerfield, 171 N.J. 446, 459-60 (2002) (quoting Pierce, supra, 136 N.J. at 190-91). "[T]he Pierce Court looked to 'other sources of law [for] standards that should inform police officers in the exercise of their statutory [discretionary] authority.'" Id. at 460 (quoting Pierce, supra, 136 N.J. at 191) (alterations in original).

However, just like the defendant in Pierce, defendant here was arrested for operating his vehicle while his license was suspended. Pierce held that, in general, arresting someone who violates that specific section of the Motor Vehicle statutes is a valid exercise of police discretion:

Because danger to the public safety is one of the significant factors that informs a police officer's decision whether to arrest or issue a summons in respect to traffic offenses, we would assume that police officers would generally, if not invariably, arrest persons driving while their licenses are suspended, in recognition of the potential hazard presented by one who operates a motor vehicle without State authorization.

 

[Id. at 207 (citation omitted) (emphasis added).]

 

For the sake of completeness, we note our agreement with the State's alternative argument that defendant's motion for a new trial was properly denied because even if the arrest was unlawful, it was not a defense to the charge. A judge may grant a defendant's motion for a new trial "if required in the interest of justice." R. 3:20-1. The judge, however, "shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid. "The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; and see State v. Perez, 177 N.J. 540, 555 (2003).

N.J.S.A. 2C:29-2a specifically provides that an unlawful arrest is not a defense to resisting arrest if "the law enforcement officer was acting . . . under color of his official authority and . . . announce[d] his intention to arrest prior to the resistance." The jury and the judge, in turn, were entitled to credit the evidence at trial that Gibison was acting under color of official authority when he announced his intention to place defendant under arrest.

B.

Defendant apparently also sought a new trial by claiming the evidence was insufficient to support the "lesser-included" offense of fourth-degree resisting arrest.4 The judge rejected the argument, stating "[t]here was ample evidence to support the case going to the jury, and a reasonable jury could have found the lesser-included fourth-degree resisting." The judge further observed, "The only difference between the lesser-included and the indicted is the allegation of injury."

The State concedes it was error for the judge to treat the offense for which defendant was convicted as a fourth-degree crime. We only address the point briefly.

N.J.S.A. 2C:29-2a provides:

(1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) Any offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person:

 

(a) Uses or threatens to use physical force or violence against the law enforcement officer or another; or

 

(b) Uses any other means to create a substantial risk of causing physical injury to the public servant or another. . . .

 

In State v. Simms, 369 N.J. Super. 466, 470 (App. Div. 2004), we explained,

the statute . . . defines three grades of resisting arrest. The basic offense of resisting arrest, that is, purposely preventing or attempting to prevent a law enforcement officer from effecting an arrest, is a disorderly persons offense. It is raised to a fourth-degree crime if the prevention or attempted prevention of the arrest is accomplished by flight. Whether or not flight is involved, however, if the resistance is accompanied by physical force or violence against the officer, the crime is of the third degree.

 

The judge instructed the jury on the necessary elements of the "basic offense of resisting arrest." The judge then provided additional instructions on third-degree resisting arrest, which he described as "the most serious form of the crime," by telling the jury the State needed to prove beyond a reasonable doubt that defendant "used any means to create a substantial risk of causing physical injury to a public servant or another." The jury was never instructed as to fourth-degree resisting, which includes the necessary element of defendant's flight, because there was no evidence to support the charge.

As already noted, the jury found defendant guilty of "basic" resisting arrest, which is a disorderly persons offense. It deadlocked as to whether defendant committed third-degree resisting arrest. At sentencing, however, the judge noted that defendant was "convicted . . . of a fourth-degree offense."

We reject defendant's continued assertion that he was entitled to a new trial because the evidence was insufficient to support the jury verdict of "basic" resisting arrest, or because the verdict was the product of bias against his political beliefs. We agree, however, that there was insufficient evidence to support a conviction for fourth-degree resisting because there was no evidence that defendant attempted to flee. As a result, we vacate the judgment of conviction for fourth-degree resisting arrest and remand the matter to the trial court to enter an amended judgment of conviction reflecting defendant's conviction of the disorderly persons offense of resisting arrest.5

Affirmed. Remanded for entry of an amended judgment of conviction.

1 Pennsville police also issued defendant four motor vehicle summonses arising out of the same incident, including operating a motor vehicle while his license was suspended or revoked. See N.J.S.A. 39:3-40. The trial judge, sitting as a municipal court, found defendant guilty of all four violations. There are no issues presented on appeal regarding these offenses.

2 Although the circumstances are entirely unclear from the record, the judgment of conviction indicates that count one charging defendant with aggravated assault had been dismissed.

3 Defendant has failed to provide us with a copy of the grand jury transcript upon which the pre-trial motion to dismiss the indictment would have relied. However, in deciding the pre-trial motion, the judge referenced what were essentially the undisputed facts surrounding defendant's arrest.

4 Without explication, during his argument on the motion for a new trial, defense counsel alluded to the brief he filed, which is not in the record. We therefore are limited in our review to the comments made by the judge in deciding the motion. As we explain infra, fourth-degree resisting is not a lesser-included offense of third-degree resisting.

5 We note that the maximum term of incarceration for a disorderly persons offense is six months and that defendant actually served more time than the statutory maximum. See N.J.S.A. 2C:43-8.