STATE OF NEW JERSEY v. ROBERT FRANKLIN

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2527-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT FRANKLIN,

     Defendant-Appellant.
_______________________________

                   Submitted November 13, 2018 – Decided February 6, 2019

                   Before Judges Haas and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Burlington County, Municipal Appeal No.
                   22-17.

                   Zwerling Law Group, LLC, attorneys for appellant
                   (David J. Zwerling, on the brief).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Nicole Handy, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Robert Franklin appeals his December 19, 2017 conviction for

disorderly conduct and resisting arrest following a trial de novo in the Law

Division. We affirm.

      The pertinent evidence was set forth in the oral decision by Judge Thomas

P. Kelly and need not be repeated in detail here. A brief summary will suffice.

      In the mid-afternoon of May 28, 2016, defendant with his godmother,

Kathleen Spinogatti, in the front passenger's seat, drove to a gas station in

Riverside Township. He asked the gas station attendant for fifteen dollars in

gas. After the gas was pumped, defendant and the attendant got into a dispute

over whether defendant tendered a twenty-dollar bill to pay for the gas. The

attendant claimed he was only given two dollars. To resolve the dispute, they

went into the store at the gas station to view the surveillance video of the

transaction. They continued to disagree after viewing the video, and another

attendant called the police.

      Riverside Patrol Officers Michael Megara and Timothy Marano

responded to the call. Upon hearing defendant and the attendant's respective

explanations, the officers viewed the video and determined that defendant did

not tender a twenty-dollar bill for payment. Defendant then claimed, according

to Officer Megara, that he gave a two-dollar tip to the attendant and was going


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to pay fifteen dollars for the gas. Officer Megara, bearing in mind the video and

not believing the tip claim, directed defendant to pay the attendant the unpaid

amount of thirteen dollars. Balling thirteen dollars in his fist, defendant punched

his hand into the attendant's hands and let go of the money. Defendant then

called attendant an "Indian," and yelled at him, "stay out of my country." The

attendant counted the money and walked away.            After defendant refused

multiple orders by the police officers to leave the gas station, he was told that

he was under arrest. While defendant was yelling, Officer Megara opened the

car door and put one cuff on defendant's left wrist. Defendant held onto the car's

steering wheel and refused to get out of the car. He was then pulled out of the

car and after the other handcuff was placed on his right wrist, he ran into the gas

pump on his own volition. Defendant was issued summonses for disorderly

conduct,  N.J.S.A. 2C:33-22(a), resisting arrest, N.J.S.A. 2C29-2(a)(1),

obstructing the administration of law, N.J.S.A. 2C29-1, and driving with a

suspended license,  N.J.S.A. 39:3-19.

      Prior to the municipal court trial, defendant pled guilty to the motor

vehicle violation. After the trial, in which Spinogatti 1 and Officers Megara and


1
  Spinogatti testified that she saw a twenty-dollar bill in defendant's hand prior
to him paying the attendant but she did not see him give the bill to the attendant
because she turned her head away.
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Marano testified, and the surveillance video, police radio log and police report

were admitted into evidence, the municipal court judge reserved judgment.

About a month later, he rendered his oral decision, crediting the video and the

officers' testimony, finding defendant guilty of disorderly conduct and resisting

arrest, and dismissed the obstructing charge by way of merger with the resisting

conviction. Defendant was sentenced to fines and penalties a week later.

      At a trial de novo, Judge Kelly found defendant guilty anew and imposed

the same fines and penalties as the municipal court judge. Considering his

review of the municipal court transcript and viewing the surveillance video, the

judge stated:

            . . . the police, I think, acted reasonably to direct the
            defendant [to] pay the attendant, and get out of here.
            Whether they were right or wrong, in that direction,
            they certainly did that.

                   For whatever reason, [defendant], decided he
            wasn't leaving. He stayed. He was directed to leave
            again, and he did not. The police told him, look, if you
            don't leave we're going to lock you up. We're going to
            arrest you. He refused to leave, and began yelling at
            the officers again, after they asked him to leave. And
            they asked, as I said, if you refuse to leave, they told
            him he'd be placed under arrest.

                  He attempted to exit the vehicle, but one of the
            officers stopped him from getting out, and told
            [defendant], just leave, but he did not.


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             ....

             I do find that the evidence does prove, beyond a
      reasonable doubt, that disorderly conduct due to
      improper behavior, they caused tumultuous behavior,
      and a public inconvenience and whatever, in a public
      gas station during the daylight hours, and that he was
      ordered to leave, and he did not, and he was told if he
      didn't leave he would be arrested, and then he resisted
      the arrest by not getting out of the car; they had to pull
      him out. And that's really what happened. Anybody
      who . . . reads the transcript and then looks at the
      [video] you see that that's exactly what happened here.

On this appeal, defendant presents the following points of argument:

      POINT I

      THE LAW DIVISION ERRED IN FINDING
      DEFENDANT   GUILTY  OF   DISORDERLY
      CONDUCT IN VIOLATION OF  N.J.S.A. 2C:33-
      2(A)(1).

            (A) THE STATE DID NOT PROVE
            THAT DEFENDANT CREATED OR
            INTENDED TO CREATE "A PUBLIC
            INCONVENIENCE, ANNOYANCE OR
            ALARM OR THAT HE RECKLESSLY
            CREATED A RISK THEREOF" OR BY
            "ENGAGING   IN  FIGHTING   OR
            THREATENING OR IN VIOLENT OR
            TUMULTUOUS BEHAVIOR."

            (B) THE COURT ERRONEOUSLY
            RELIED   UPON    VIDEOTAPE
            EVIDENCE OF [THE] ALLEGED
            CONDUCT   WHICH   OCCURRED
            BEFORE THE ARRIVAL OF THE

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                   POLICE AND WHICH DID NOT FORM
                   THE BASIS OF PROBABLE CAUSE TO
                   ARREST DEFENDANT.

            POINT II

            THE LAW DIVISION ERRED IN FINDING
            DEFENDANT GUILTY OF RESISTING ARREST IN
            VIOLATION OF  N.J.S.A. 2C:29-2 (A)(1).

      Having considered these contentions in light of the record and the

applicable law, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons set forth in Judge Kelly's thorough oral opinion. We add the following

brief comments.

      When the Law Division conducts a trial de novo on the record developed

in the municipal court, "[o]ur review is limited to determining whether there is

sufficient credible evidence present in the record to support the findings of the

Law Division judge, not the municipal court." State v. Clarksburg Inn,  375 N.J.

Super. 624, 639 (App. Div. 2005) (citing State v. Johnson,  42 N.J. 146, 161-62

(1964)). Because the Law Division judge is not in a position to judge the

credibility of witnesses, he or she should defer to the credibility findings of the

municipal court judge. Ibid. (citing State v. Locurto,  157 N.J. 463, 474 (1999)).




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Furthermore, when the Law Division agrees with the municipal court, the two -

court rule must be considered. "Under the two-court rule, appellate courts

ordinarily should not undertake to alter concurrent findings of facts and

credibility determinations made by two lower courts absent a very obvious and

exceptional showing of error." State v. Reece,  222 N.J. 154, 166 (2015) (quoting

Locurto,  157 N.J. at 474).

      Having considered defendant's contentions concerning the sufficiency of

the evidence in light of the record and the applicable legal principles, we discern

no basis to disturb the findings and conclusions contained in Judge Kelly's

thoughtful oral opinion. His analysis of the issues, including his deference to

the municipal court judge's detailed credibility findings, was comprehensive and

correct.

      Affirmed.




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