NOT FOR PUBLICATION WITHOUT THE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-2717-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NASIR FINNEMEN,
Defendant-Appellant.
__________________________
Submitted July 12, 2017 – Decided October 6, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County, Municipal
Appeal No. A-07-15.
Maschmeyer Karalis, PC, attorneys for
appellant (Linda B. Alle-Murphy, on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following a trial de novo in the Law Division, defendant
Nasir Finnemen was convicted of disorderly conduct, N.J.S.A.
2C:33-2, and resisting arrest, N.J.S.A. 2C:29-2(a). On appeal,
defendant raises the following contentions:
Point One: The Courts Below Erred in Finding
Sergeant Beach's Testimony To Be Credible.
Point Two: The Trial Court Erred in Not
Admitting the Videotape of An Incident
Occurring on December 14, 2012 Under [N.J.R.E.
403].
Point Three: Defendant/Appellant's Conduct
Did Not Rise to the Level of Disorderly
Conduct As a Matter of Law.
Point Four: Defendant/Appellant's Conduct Did
Not Meet the Requirement of Resisting Arrest
As a Matter of Law.
We have considered defendant's contention in Point Two in
light of the record and applicable legal principles and conclude
it is without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). The municipal court and Law Division
judges properly found that the videotape of an incident between
defendant and a Camden County Sheriff's Officer on December 14,
2012 had no connection with this case and was irrelevant. See
State v. Cole, 229 N.J. 429, 447 (2017) (noting that in deciding
whether evidence is relevant, the court "should focus on the
logical connection between the proffered evidence and a fact in
issue"). Accordingly, we address defendant's remaining
contentions.
2 A-2717-15T1
I.
On July 17, 2014, Sergeant Michael Beach and Patrolman Michael
Schaeffer of the Mt. Ephraim Police Department were dispatched to
a Walgreens after an employee reported that a customer, later
identified as defendant, caused a disturbance inside the store,
then exited, walked across the street, and yelled obscenities at,
and made obscene hand gestures to, Walgreens employees who went
outside the store to see where defendant went. According to the
employee, defendant was asked to leave the store because he was
harassing customers.
When Beach arrived, he saw defendant standing at a bus stop
approximately 100 feet across from Walgreens. Defendant was irate
and angrily gesturing with his hands. Beach exited his patrol car
and approached defendant, who was yelling that the Walgreens
employees were harassing him and he wanted to sue them. Defendant
also yelled obscenities to the employees and made obscene hand
gestures toward them, namely, raising his middle finger and
grabbing his genital area. Beach instructed defendant numerous
times to calm down, but defendant did not comply. Defendant
repeatedly moved around Beach to make sure the Walgreens employees
continued to hear his obscenities and see his obscene hand
gestures.
3 A-2717-15T1
According to defendant, Schaeffer arrived and told him he
received a call that defendant was "sticking up [his] middle
finger, and grabbing [his] private[,]" and commented to him: "I
should lock you up. This is not . . . Camden, this is not the
hood. This is the suburbs and . . . it's not the ghetto."
Defendant denied making obscene hand gestures and took offense to
Schaeffer's comments.
Beach served defendant with a summons, charging him with
disorderly conduct based on what Beach had observed. Fearing that
defendant might return to Walgreens and cause problems, Beach
instructed him to walk up the street to the next bus stop
approximately one-and-one-half blocks away to avoid an arrest.
Defendant continued yelling as he walked away, and said the
officers were harassing him and were not allowed to charge him.
He claimed that Schaeffer told him "[he] had three seconds to get
off the bus stop[.]"
Defendant walked approximately 200 yards, called 9-1-1, and
reported that the officers had disrespected him and Schaeffer
abused his authority by telling him to get off a public bus stop.1
Beach and Schaeffer, the only officers on duty at the time,
1
Defendant was charged with making a false public alarm by calling
9-1-1, N.J.S.A. 2C:33-3(e), but the State voluntarily dismissed
the charge.
4 A-2717-15T1
responded to the call. Beach was the first to arrive at
defendant's location and, as he approached defendant, defendant
angrily threw up his arms, yelled obscenities, refused to speak
to Beach, and demanded to speak with Beach's supervisor. Beach
advised defendant that he was the on-duty supervisor and defendant
could file a complaint against the officers. Defendant then
entered a nail salon after being advised not to do so, and
continued to yell and cause a scene.
Schaeffer arrived, and the officers advised defendant he was
under arrest. Beach instructed defendant to place his hands behind
his back, but defendant pulled away and twisted and turned when
Schaeffer placed a handcuff on his right hand. Defendant fought
with the officers as Beach grabbed his left arm. The officers
took defendant to the ground, and he tucked both of his arms
underneath his body and continued to fight. The officers were
eventually able to handcuff defendant. Defendant did not advise
the officers he had a problem or condition with his shoulder that
prevented him from putting his hands behind his back. Defendant
was using a cane, for reasons unclear from the record, but was
able to walk backwards and lift and point it, and did not appear
to rely on it. Beach served defendant with a summons, charging
him with resisting arrest.
5 A-2717-15T1
Defendant denied yelling obscenities or making obscene hand
gestures to the Walgreens employees, and claimed that he walked
to the next bus stop as Beach had instructed. Defendant testified
he had no problem with Beach, but called 9-1-1 because he believed
Schaeffer was abusing his authority. He also testified that he
complied when told to put his hands behind his back, and that when
he turned his head to ask why he was being arrested, Schaeffer
took him to the ground and used excessive force to handcuff him.
Defendant admitted he did not tell the officers he had an injury
to his shoulder.
Defendant testified that his witness, Dr. Patrick Brown,
heard him yelling and told him he looked disabled. However, Brown
testified that he heard a commotion outside his chiropractic
office, and when he went outside, he saw Beach opening the back
door of his patrol car and helping defendant into it. Brown also
saw defendant "carrying on a lot . . . yelling and screaming[]"
and did not see "anything out of the ordinary except [defendant]
making a lot of noise." Brown did not recall telling defendant
he looked disabled.
The municipal court judge found that Beach's testimony was
credible, unbiased, and an accurate recitation of events. The
judge noted that Beach's recollection was "quite vivid," which was
"logical considering that he had the most interaction with the
6 A-2717-15T1
defendant." The judge also noted that defendant admitted he had
no problem with Beach, and found defendant's "only beef . . . was
with . . . Schaeffer, whom he clearly did not like."
The municipal court judge found defendant's testimony was
"biased, incredible in parts, and largely colored by his anger
that day" and contradicted by other witnesses, especially Brown.
The judge made specific findings on the elements of disorderly
conduct and resisting arrest, and found defendant guilty of each
offense. The judge declined to impose a jail sentence, and
instead, imposed the appropriate fines, fees, and court costs.
On appeal, the Law Division judge reviewed the record and
made independent factual findings. The judge found no reason to
reject the municipal court judge's credibility findings, and
determined the officers' testimony was "trustworthy, reliable and
credible." Regarding the disorderly persons offense, the judge
made the following findings:
I find that on July 17, 2015, the defendant
. . . encountered Sergeant Beach and Officer
[Schaeffer] . . . near the Walgreens located
at 20 West Kings Highway, Mount Ephraim, New
Jersey.
I find that upon arrival, Sergeant Beach
observed defendant shouting obscenities and
making wild gestures.
I find that Sergeant Beach observed the
defendant gesturing to the Walgreens and the
7 A-2717-15T1
Walgreens personnel standing outside using his
middle finger and grabbing his crotch area.
I [find] that Sergeant Beach attempted
to calm down the defendant and have him lower
his voice, to little avail.
The judge recited N.J.S.A. 2C:33-2(a) and (b), and found defendant
guilty of disorderly conduct, reasoning that defendant's "conduct
across from the Walgreens certainly [fell] within the definition
[of disorderly conduct] as articulated."
The judge also made specific findings regarding the resisting
arrest charge. Reciting N.J.S.A. 2C:29-2(a), the judge found
defendant guilty of resisting arrest, reasoning as follows:
With regard to the resisting arrest, the
facts are as found by the [c]ourt, and again,
credibly testified by the police officers that
when being informed [he] was under arrest,
[defendant] pulled away and would not allow
himself to be cuffed, and basically engaged
in an altercation with the police officers.
The judge imposed the same fines, fees, and court costs. This
appeal followed.
II.
Beach issued an investigative report of the incident, which
was admitted into evidence. Defendant contends in Point One that
the municipal court and Law Division judges erred in finding
Beach's testimony credible because his investigative report was
inconsistent with his trial testimony. Specifically, defendant
8 A-2717-15T1
argues the report did not state that he used obscenities and made
obscene hand gestures, and stated that Beach handcuffed his left
hand, whereas Beach testified he handcuffed his right hand.
The Court in State v. Robertson, 228 N.J. 138, 144 (2017),
reaffirmed the standard of review between the Law Division and the
municipal court:
In the Law Division, the trial judge may
reverse and remand for a new trial or may
conduct a trial de novo on the record below.
At a trial de novo, the court makes its own
findings of fact and conclusions of law but
defers to the municipal court's credibility
findings. It is well-settled that the trial
judge giv[es] due, although not necessarily
controlling, regard to the opportunity of the
municipal court judge to assess the
credibility of the witnesses.
[Robertson, supra, 228 N.J. at 147-48
(citations omitted).]
"We do not weigh the evidence, assess the credibility of
witnesses, or make conclusions about the evidence." State v.
Barone, 147 N.J. 599, 615 (1997). Because neither the appellate
court nor the Law Division judge is in a good position to judge
credibility, the municipal court's credibility findings are given
deference. State v. Locurto, 157 N.J. 463, 470-71 (1999). The
rule of deference is more compelling where, such as here, both
judges made concurrent findings. Id. at 474. "Under the two-
court rule, appellate courts ordinarily should not undertake to
9 A-2717-15T1
alter concurrent findings of facts and credibility determinations
made by two lower courts absent a very obvious and exceptional
showing of error." Ibid. (citation omitted). Therefore, appellate
review of the factual and credibility findings of the municipal
court and the Law Division "is exceedingly narrow." State v.
Reece, 222 N.J. 154, 167 (2015) (quoting id. at 470).
Defendant's argument that Beach's report did not state that
he used obscenities is incorrect. The report specifically states
that defendant used obscenities:
Upon arrival, I located [defendant] and upon
speaking with him I observed him to be irate
and stating that he was disrespected by the
employees of Walgreens. While speaking with
[defendant] . . . Schaeffer responded to
Walgreens and spoke with the caller who stated
that the male was harassing customers and was
asked to leave the building. The person
reporting stated that the male began cursing
and left the building and walked across the
street and began yelling obscenities back at
her at which time she called police.
[(Emphasis added).]
Although the report did not state that defendant made obscene hand
gestures, the municipal court judge credited Beach's testimony
that he saw defendant repeatedly do so. Defendant has not shown
how the judge's credibility finding constituted any error.
Locurto, supra, 157 N.J. at 471.
10 A-2717-15T1
Defendant's argument about which hand Beach handcuffed is
meritless. Defendant has not articulated any basis upon which
Beach's testimonial misidentification of the hand he handcuffed
affected the outcome of this case. This minute detail falls
woefully short of being a "crucial inconsistency," as
characterized by defendant, and therefore warrants no disturbance
as a "very obvious and exceptional showing of error." Id. at 474.
III.
Defendant contends in Point Three that his conduct did not
rise to the level of disorderly conduct as a matter of law. He
argues his conviction should be reversed because he did not engage
in tumultuous behavior, as proscribed under N.J.S.A. 2C:33-(a)(1).
He posits he was merely yelling at the Walgreens employees across
the street from the store, and his conduct was insufficient to
support his conviction. We disagree.
In our review of the Law Division's decision on a municipal
appeal, "[w]e consider only the action of the Law Division and not
that of the municipal court." State v. Adubato, 420 N.J. Super.
167, 175-76 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012).
We consider "whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record."
State v. Stas, 212 N.J. 37, 49 (2012) (quoting Locurto, supra, 157
N.J. 463, 471 (1999)). "Unlike the Law Division, which conducts a
11 A-2717-15T1
trial de novo on the record, Rule 3:23-8(a), we do not
independently assess the evidence." State v. Gibson, 429 N.J.
Super. 456, 463 (App. Div. 2013) (quoting Locurto, supra, 157 N.J.
at 471), rev'd on other grounds, 219 N.J. 227 (2014). Applying
these standards, we discern no reason to reverse defendant's
conviction for disorderly conduct.
Defendant was charged with disorderly conduct under N.J.S.A.
2C:33-2(a)(1), which required the State to prove that he "with
purpose to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof[,] . . . [e]ngage[d] in fighting
or threatening, or in violent or tumultuous behavior[.]" "Public"
is not defined in subsection (a), but N.J.S.A. 2C:33-2(b) defines
the term as follows: "affecting or likely to affect persons in a
place to which the public or a substantial group has access; among
the places included are . . . places of business or . . . any
neighborhood." Although "[i]t is not clear whether the Legislature
intended [the subsection (b)] definition to apply to [the] use of
the word 'public' in subsection [(a)], . . . for present purposes
we assume a consistency of meaning." State v. Stampone, 341 N.J.
Super. 247, 254 (App. Div. 2001).
When N.J.S.A. 2C:33-2 was enacted in 1978, "tumultuous" was
defined as "marked by tumult," "tending or disposed to cause or
excite a tumult," and "marked by violent or overwhelming turbulence
12 A-2717-15T1
or upheaval." Webster's New Collegiate Dictionary 1258 (1977).
In turn, "tumult" was defined to include not only the crowd-focused
definitions cited in Stampone, but also "violent agitation of mind
or feelings" and "a violent outburst." Ibid.; see also United
Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super.
1, 67 (App. Div.) (noting that "[t]umult is defined as either
'uproar' or 'violent agitation of mind of feelings,'" and that
"[e]xcessive noise could qualify as an uproar or a violent
agitation") (quoting Webster's New American Dictionary 555
(Smithmark 1995)), certif. denied, 170 N.J. 390 (2001).
N.J.S.A. 2C:33—2(a) does not require that a defendant
actually "cause public inconvenience, annoyance or alarm," but
only that the defendant acted "with [the] purpose to cause" it or
"recklessly creat[ed] a risk thereof." A person acts purposely
"if it is his conscious object to engage in conduct of that nature
or to cause such a result." N.J.S.A. 2C:2-2(b)(1). 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 disregard
involve[d] a gross deviation from the standard
of conduct that a reasonable person would
observe in the actor's situation.
13 A-2717-15T1
[N.J.S.A. 2C:2-2(b)(3).]
Defendant does not dispute he was in a public place. The
record confirms he acted in an agitated and aggressive manner, and
engaged in a loud profane-ridden tirade while flailing his arms
in anger as he yelled profanities and made obscene hand gestures
toward the Walgreens employees. Defendant engaged in such conduct
despite Beach's instruction that he calm down. Under the totality
of the circumstances presented, we are persuaded that defendant's
conduct caused public inconvenience, annoyance or alarm and
constituted "overwhelming turbulence or upheaval," Webster's New
Collegiate Dictionary, supra, at 1258, and a "violent agitation
of mind or feelings." United Prop. Owners Ass'n of Belmar, supra,
343 N.J. Super. at 67 (citation omitted), and therefore constituted
tumultuous conduct under N.J.S.A. 2C:33-2(a)(1). The evidence
amply supports the court's determination that defendant committed
the offense of disorderly conduct in violation of N.J.S.A. 2C:33-
2(a)(1).
IV.
Lastly, defendant contends in Point Four that his conduct did
not meet the requirements of resisting arrest because he lacked
the requisite criminal intent to resist arrest due to a dislocated
right shoulder that prevented him from complying with the officers'
14 A-2717-15T1
command to place his hands behind his back. This contention lacks
credulity.
"[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." N.J.S.A. 2C:29-2(a)(1). Resisting
arrest "requires a culpability of purpose." State v. Branch, 301
N.J. Super. 307, 321 (App. Div. 1997), rev'd on other grounds, 155
N.J. 317 (1998). A defendant therefore must be aware that police
are attempting to effectuate an arrest to be guilty of resisting
it. Ibid. If a reasonable factfinder could find that, based on
the circumstances, defendant knew police were attempting to make
an arrest, and defendant resisted that arrest, there is sufficient
evidence to uphold a conviction. Ibid.
There is no question that defendant knew the officers' were
attempting to effectuate an arrest, and never advised them he had
an injury to his shoulder that prevented him from complying with
their command to place his hands behind his back. The record
confirms defendant resisted arrest by pulling back, twisting and
turning, and fighting with the officers while they attempted to
handcuff him, and was sufficient to uphold his conviction for
resisting arrest.
Affirmed.
15 A-2717-15T1