Opinion
DOCKET NO. A-1888-14T4
04-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAVAN PATEL, Defendant-Appellant.
Christopher Gillin-Schwartz argued the cause for appellant (Barry, Corrado & Grassi, P.C., attorneys; Mr. Gillin-Schwartz, on the brief). Brett Yore, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Yore, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0023-14. Christopher Gillin-Schwartz argued the cause for appellant (Barry, Corrado & Grassi, P.C., attorneys; Mr. Gillin-Schwartz, on the brief). Brett Yore, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Yore, of counsel and on the brief). PER CURIAM
Defendant Pavan D. Patel appeals from his conviction of resisting arrest, a disorderly persons offense, N.J.S.A. 2C:29-2(a)(1), after a trial de novo. As the arrest was unlawful, and the officer failed to announce his intention to arrest before defendant resisted, we reverse.
I.
We discern the following facts from the record of the municipal court trial. The sole witnesses were the arresting officer, Avette A. Harper of the Atlantic City Police Department, and Ankeet Gandhi, defendant's friend.
The arrest arises out of an incident outside the Golden Nugget casino-hotel on September 22, 2013. Defendant and Gandhi, along with their girlfriends, had attended a birthday celebration in a club inside the casino-hotel. Defendant's girlfriend became ill, and club personnel eventually asked her to leave. As a courtesy, personnel allowed the two couples to leave through a rear exit, to avoid having to navigate through the crowded club toward the front door.
The four exited onto a landing about the size of a table, above a stairway of three or four steps. There was already significant police and hotel security activity outside the club exit. At or near the bottom of the steps, a patron who had injured his leg was being helped onto a gurney by emergency medical staff. On the stairway, to the side of defendant, officers were also struggling to take into custody another person who had been removed from the club.
According to Harper, security personnel needed defendant and his party to keep moving down the stairway. As defendant stood at the top of the steps, holding the handrail, he hesitated. Harper testified he did so "for no apparent reason," but the municipal court judge concluded he stopped because he was afraid to wade through the congestion around him. A security guard told defendant and the other three to get off the stairs. Defendant did not move. The guard then began pulling defendant and wrestling with him, attempting to remove him from the stairwell.
Harper believed defendant and the rest of his party had just been kicked out of the club. He saw the guard and defendant wrestling. By this point, defendant was on the ground, at the bottom of the stairway. "Now at that point I believe [defendant's] attempting to assault security, he's already wrestling with them. So I go there just to break it up. . . ." Harper was in full police uniform. He testified that he told the security guard to stand down, and he announced to defendant he was a police officer.
Harper stated that after the guard stepped away, defendant then began to wrestle with him. Harper explained that once defendant began wrestling with him, defendant was under "constructive" arrest for being disorderly, although Harper did not orally advise defendant that he was under arrest. Harper struck defendant multiple times with a closed fist and attempted to place handcuffs on him. Harper contended that telling defendant he was under arrest would have sapped his energy and placed himself at risk. He contended his use of force constructively informed defendant he was under arrest. Harper succeeded in placing one handcuff on, but defendant withheld his other arm. Harper was able to fully restrain defendant with another officer's help.
According to Gandhi, as the guard pulled defendant down the stairs, defendant fell into a paramedic. The guard dragged him to the side. Defendant was moving on the ground when Harper came over to him. Gandhi overheard Harper tell defendant to stop resisting as he tried to keep him on the ground, and Gandhi heard defendant say he was not resisting. He saw defendant continue to move around on the ground; and he saw Harper strike defendant.
Harper charged defendant with two offenses: (1) disorderly conduct, N.J.S.A. 2C:33-2(a)(2), for "creating a hazardous and physically dangerous condition by an act which served no legitimate purpose of the defendant, specifically, by grabbing on to the railing of a sta[ir]case while being escorted out of the Golden Nugget and refusing to let go, causing an unsafe condition which required Officer A. Harper to assist security personnel"; and (2) resisting arrest "by refusing to provide his hands when advised he was being placed under arrest . . . ." N.J.S.A. 2C:29(a)(1).
Although the complaint refers to N.J.S.A. 2C:33-2(a)(1) — which involves "engag[ing] in fighting or threatening, or in violent or tumultuous behavior" — the facts as alleged track the language of N.J.S.A. 2C:33-2(a)(2) — which involves the "creat[ion] [of] a hazardous or physically dangerous condition by an act which serves no legitimate purpose of the actor."
The municipal court found defendant not guilty of the disorderly conduct charge, after concluding that defendant acted reasonably in hesitating to move from the top of the stairs. However, the court did find defendant guilty of resisting arrest. The court concluded that even if the arrest were mistaken, defendant was obliged to submit. The municipal court judge found that notwithstanding the failure to announce the arrest, a reasonable person under the circumstances would have believed he was under arrest.
On de novo review, the Law Division also found defendant guilty of resisting arrest. The judge considered Harper's testimony more credible than Gandhi's. The judge found that the security guard got into a "physical tussle" with defendant after he declined to continue down the stairs. Harper approached, told the guard to stand down, and identified himself as a police officer. The court found that defendant then began to wrestle with Harper. The officer told him to stop, but defendant did not comply. "The officer then resorted to physical force against the defendant and managed to put a handcuff on one wrist, but was unable to cuff the other until a second officer intervened and assisted."
The court addressed defendant's argument that the acquittal of the disorderly conduct count "invalidates the arrest," and made it an illegal arrest. The court questioned whether an acquittal necessarily implied that the officer lacked probable cause to arrest. However, the court ultimately did not decide whether the arrest was lawful, stating that focusing on the "illegality of the arrest" placed "form over substance."
The court noted the fluidity of the situation. The court found that Harper was trying to calm things down, and "to get the defendant the rest of the way out of the building without further incident" when "defendant simply disengaged from the security guard and picked up without missing a figurative beat by wrestling with the officer instead of the security guard." The officer responded by using physical force and trying to place handcuffs on the defendant. "[T]here was a constructive arrest of the defendant without the words 'you are under arrest' having been uttered." The court concluded that a reasonable person in defendant's position would have recognized Harper was trying to arrest him. Defendant resisted and thereby "attempted to prevent the arrest."
In his sole point on appeal, defendant argues:
The State Did Not Meet Its Burden To Prove Beyond A Reasonable Doubt Defendant Acted Purposely.
II.
In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division's decision. State v. Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, which conducts a trial de novo on the record, Rule 3:23-8(e), we do not independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). In addition, under the two-court rule, only "a very obvious and exceptional showing of error" will support setting aside the Law Division and municipal court's "concurrent findings of facts. . . ." Id. at 474. However, where issues on appeal turn on purely legal determinations, our review is plenary. State v. Vargas, 213 N.J. 301, 32 7 (2013); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In particular, an appellate court is not required to defer to a trial court's finding of probable cause "when the facts and inferences do not support that conclusion." State v. Gibson, 218 N.J. 277, 294 (2014).
A person commits the disorderly persons offense of resisting arrest when he or she "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(1). The State must prove "it was defendant's conscious object to prevent his arrest." State v. Ambroselli, 356 N.J. Super. 377, 385 (App. Div. 2003). Where the arrest is lawful, the officer's failure to announce the intention to arrest is simply a factor in determining whether every element of the offense has been established. State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998).
However, if the arrest is unlawful, the question of whether the officer announced an intent to arrest becomes critical. "It is not a defense to [resisting arrest] . . . that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and . . . announces his intention to arrest prior to the resistance." N.J.S.A. 2C:29-2(a); see State v. Reece, 222 N.J. 154, 173 (2015) (affirming conviction of resisting arrest where officer announced intention arrest). However, if the officer fails to announce his intention prior to the resistance, then a conviction for resisting an unlawful arrest may not stand. See State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997) (reversing resisting arrest conviction where arrest was unlawful, and State failed to prove police had announced their intention to arrest before the defendant resisted).
The defense to resisting arrest described in N.J.S.A. 2C:29-2 is an ordinary, not affirmative defense. See State v. Moultrie, 357 N.J. Super. 547, 555-56 (App. Div. 2003) (defenses not labeled in criminal code as "affirmative defenses" are considered ordinary defenses which must be "disproved by the state with no requirement that the defendant adduce any evidence whatsoever in their support.") (citing Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:1-13(b) (2015)). Thus, once raised by the defendant, the State bears the burden of disproving it. N.J.S.A. 2C:1-13(a); Kane, supra, 303 N.J. Super. at 182 ("[The State failed to prove beyond a reasonable doubt that the police had announced their intention to arrest prior to [defendant's] resistance.").
The use of force is not justified to resist arrest, even if the arrest is unlawful, unless the officer "employs unlawful force to effect such arrest." N.J.S.A. 2C:3-4(b)(1)(a); see Reece, supra, 222 N.J. at 174 (rejecting claim of unlawful force where two officers punched arrestee because of perceived danger arrestee posed to a third officer); State v. Mulvihill, 57 N.J. 151, 156-57 (1970) (stating, in a pre-Code case, a person may resist if officer uses excessive force, notwithstanding general rule that a person may not resist an unlawful arrest). --------
Applying these principles, we discern no basis to disturb the finding that defendant "purposely . . . attempt[ed] to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(1). Although Harper did not announce that he was arresting defendant, neither judge considered this omission to be a dispositive factor in determining defendant's state of mind. Sufficient, credible evidence in the record supports the finding that defendant refused to make his hands available to be handcuffed.
Nonetheless, defendant contends acquittal was mandated because the officer acted unlawfully in making the arrest; consequently, the failure to announce established a defense. We agree. We address the failure to announce, and then the unlawfulness of the arrest.
Harper admitted he did not orally tell defendant he was under arrest. He contended, and the trial court agreed, that he "constructively" informed defendant he was under arrest by announcing he was a police officer, restraining defendant, and attempting to place him in handcuffs. We have found no authority, however, which supports the contention that an officer may "constructively" announce his intention to arrest solely by stating he is a police officer and engaging in the act of arrest itself. Rather, the statute's plain meaning requires an officer to "announce[] his intention" orally. See In re Kollman, 201 N.J. 557, 568 (2012) ("If the plain language is clear, the court's task is complete."). Accordingly, we conclude that Harper did not "announce[] his intention to arrest [defendant] prior to the resistance." N.J.S.A. 2C:29-2(a).
We must therefore consider whether the arrest was unlawful — an issue the trial judge declined to address. Harper testified he was arresting defendant for disorderly conduct when defendant resisted. Thus, the State must establish that the arrest for disorderly conduct was supported by probable cause. State v. O'Neal, 190 N.J. 601, 612 (2007) (stating that an arrest is lawful if supported by probable cause).
Probable cause is a "well-grounded suspicion that a crime has been or is being committed." Ibid. (citation omitted). In other words, it is "a reasonable ground for belief of guilt." Ibid. (citation omitted). Probable cause "is more than a mere suspicion of guilt, [but] less than the evidence necessary to convict a defendant of a crime in a court of law." State v. Basil, 202 N.J. 570, 585 (2010). "In determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer." Ibid. (internal quotations and citations omitted).
As charged, disorderly conduct consists of the creation of a "hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor," who acts with the "purpose to cause public inconvenience, annoyance or alarm. . . ." N.J.S.A. 2C:33-2(a)(2). We recognize that we may not infer a lack of probable cause based simply on defendant's acquittal in municipal court of the disorderly conduct offense. Cf. State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 2011) (finding defendant's acquittal of a motor vehicle violation to be immaterial to the determination of whether there was reasonable and articulable suspicion to stop). Nonetheless, we are unpersuaded that the facts, as found by the trial court, support a finding of probable cause.
Harper charged in the complaint that by grabbing on to the stairway railing and refusing to let go, defendant caused a "hazardous and physically dangerous condition." However, there was no evidence that defendant's presence at the top of the stairs, where he grabbed onto the railing, was unsafe. Rather, it would have been dangerous for defendant to attempt to wend his way through the maelstrom below the table-sized landing. An unsafe condition was created not by defendant standing still, but by the security person who pulled and wrestled with defendant, dragging him down the stairs where, according to Gandhi, he collided with an EMT and was thrown to the ground.
Nor was there probable cause to conclude that defendant grabbed onto the rail for "no legitimate purpose," N.J.S.A. 2C:33-2(a)(2), or "with purpose to cause public inconvenience, annoyance or alarm. . . ." N.J.S.A. 2C:33-2(a). Harper's contention at trial that defendant stopped "[f]or no apparent reason" defies common sense. Casino-hotel staff had just ushered defendant and his friends into an unexpectedly chaotic environment. Regardless of the security personnel's command that defendant proceed down the stairs, it is obvious that standing still did not lack a legitimate purpose. With a struggle between a patron and officers to his side, and a medical emergency below, defendant obviously thought the safest thing to do was stand still. We decline to hold that a reasonably objective officer could conclude that defendant did so with "the purpose to cause public inconvenience, annoyance or alarm."
Finally, although Harper alleged in the complaint that defendant's actions "required [him] to assist security personnel," his involvement does not establish an element of the offense. Furthermore, Harper admitted that the security person commenced wrestling with defendant, not the other way around. Thus, the security person's action, not defendant's, created the physical altercation that prompted the officer's intervention.
In sum, the evidence does not support a finding of probable cause to arrest defendant for disorderly conduct. The unlawfulness of the arrest constitutes a defense to the resisting arrest charge, as the officer failed to announce his intention to arrest before defendant resisted.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION