State of New Jersey v. John Molina

NOT FOR PUBLICATION WITHOUT THE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-2474-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN MOLINA,

Defendant-Appellant.
_______________________

Argued December 5, 2023 – Decided December 12, 2023

Before Judges Haas and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Municipal Appeal No.
MA-21-13.

Kevin Thomas Flood argued the cause for appellant.

Lauren Heidi Fox, Assistant Prosecutor, argued the
cause for respondent (John P. McDonald, Somerset
County Prosecutor, attorney; Lauren Heidi Fox, of
counsel and on the brief).

PER CURIAM
 Following a trial de novo on the record in the Law Division, the trial judge

found defendant John Molina guilty of the petty disorderly offense of disorderly

conduct under N.J.S.A. 2C:33-2(a)(1), and ordered him to pay a $300 fine and

appropriate costs and surcharges. We affirm.

At approximately 10:44 p.m. on December 10, 2019, Officer Morrison of

the Bound Brook Police Department responded to a bar in response to a call.

When Morrison arrived, the bar owner told him that defendant had refused to

pay his bar tab. According to Morrison, defendant smelled of alcohol, appeared

intoxicated, was unsteady, had slurred speech, and his eyes were bloodshot and

watery. Morrison told defendant "that he needed to pay [the tab] or he'd be

charged with theft."

As the conversation continued, defendant pulled out a cell phone and "put

it directly smack up to [Morrison's] face . . . about an inch from his face directly

in front of his eyes and nose." Morrison testified that the phone impeded his

vision and his investigation, and could have been used as a weapon given

defendant's intoxicated state. Morrison attempted to move the phone away from

his face, and defendant smacked Morrison's hand.

At that point, Morrison "took [defendant] immediately right to the ground"

in order to protect himself and nearby bar patrons. Defendant refused to place

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his arms behind his back so he could be handcuffed. Morrison and his partner,

Officer Jimenez, used a "normal arm bar" to work defendant's hands behind his

back in order to secure him.

The officers escorted defendant out of the bar. Morrison stated that

defendant was "continually being agitated. He's yelling. He's refusing to get in

the back of my car. He's putting his . . . feet on the side of the [patrol] car

refusing to get in." By that time, a third officer had arrived in the parking lot

and that officer assisted Morrison and Jimenez by helping to pull defendant into

the back of the car.

Morrison later served a summons and complaint on defendant charging

him with violating N.J.S.A. 2C:33-2(a). In pertinent part, that statute states:

A person is guilty of a petty disorderly offense, if with
purpose to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof he

(1) Engages in fighting or threatening, or in violent
or tumultuous behavior; or

(2) Creates a hazardous or physically dangerous
condition by any act which serves no legitimate
purpose of the actor.

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The complaint asserted that defendant violated N.J.S.A. 2C:33-2(a)

"specifically by yelling and refusing officer's orders to leave the area ."1

At the municipal court hearing, defendant denied the allegations against

him. He admitted there was a dispute over the amount of the bar tab, but claimed

the police simply asked him to go outside to discuss and he complied. Morrison

told defendant he had to pay the tab or he would be arrested. Defendant testified

that he and Morrison began walking back inside the bar, but Morrison "pull[ed]

on [defendant's] back." Defendant then "grabbed [his] phone to start

record[ing]" and Morrison "took [him] to the floor with his arm on [defendant's]

chest." Therefore, defendant asserted he "got arrested without reason."

Defendant's friend, who was drinking at the bar with defendant that night,

testified on his behalf. He stated he saw defendant arguing with Morrison.

When defendant began recording the officer, the witness stated the police threw

defendant to the floor and then took him to the patrol car.

1
Morrison also charged defendant with violating Bound Brook Municipal
Ordinance 3-7.5, which prohibits an individual from interfering with,
obstructing, or hindering a police officer in the performance of his or her duty.
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 After considering all of the evidence submitted during the trial, 2 the

municipal court judge determined that Morrison was credible and defendant was

not. Based upon defendant's conduct on the night in question, the judge found

that he violated N.J.S.A. 2C:33-2(a) and the Bound Brook municipal ordinance.

Following his de novo review in the Law Division, the trial judge rendered

a thoughtful written decision, accepted the municipal court judge's credibility

findings, and found defendant guilty of disorderly conduct under N.J.S.A.

2C:33-2(a).3 The judge stated:

This court finds that the defendant's behavior and
actions constitute the offense of disorderly conduct. A
person commits the offense of disorderly conduct if,
with the purpose to cause public inconvenience,

2
After the municipal court proceedings had concluded, defendant sent a
subpoena to the Bound Brook Police Department "for certain records that were
referred to during trial," but not produced at that proceeding. Specifically,
defendant sought a copy of any policies or directives setting forth standard
operating procedures for the use of video or audio recording devices by police
officer during incidents like the one involved in this case. The Department's
attorney advised defendant's attorney that the subpoena was improper.
Defendant sought to supplement the record before the Law Division with these
policies, but never supplied them to the court. Rule 3:23-8(a)(2) clearly states
that "a trial de novo" is to be conducted "on the record below." In addition, the
Law Division "may permit the record to be supplemented for the limited purpose
of correcting a legal error in the proceedings below." Ibid. Because that
exception did not apply in this case, the trial judge correctly denied defendant's
motion to supplement the record.
3
The judge dismissed the municipal ordinance violation charge after finding
that the ordinance was preempted by N.J.S.A. 2C:33-2(a)(1).
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annoyance or alarm, or recklessly creating a risk
thereof, he (1) engages in fighting or threatening, or
violent or tumultuous behavior, or (2) creates a
hazardous or physically dangerous condition by any act
that serves no legitimate purpose of the actor. N.J.S.A.
2C:33-2[(a)]. The court notes that although defendant
was intoxicated at the time, his level of voluntary
intoxication did not rise to a prostration of faculties that
negates a necessary mental state (i.e. purposeful
conduct). See N.J.S.A. 2C:2-8; State v. Cameron, 104
N.J. 42 (1986).

Here, defendant acted purposely. He did what he
intended to do. He became agitated and aggressive
when the police arrived and confronted him about the
bar tab. He was intoxicated. This led to the defendant
placing his cell phone in the officer's face, swatting his
hand, and struggling against the arrest. Defendant
continued his aggressive and violent behavior out to the
street as the officers tried to get him into the patrol car.
He would not enter the patrol car voluntarily and acted
out by kicking and pushing his feet.

To be clear, the court does not find that the activity of
the defendant in recording the officer and placing his
cell phone in the officer's face to be disorderly conduct
because it is not charged as such in the complaint. The
court finds defendant guilty of disorderly conduct based
on his post-arrest behavior in yelling, refusing to enter
the patrol vehicle, and violently using his feet to push
back against the police as they tried to get him into the
vehicle. While the complaint is not a model of clarity,
the allegations are sufficient to place defendant on
notice of the substance of the disorderly conduct charge
against him.

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 In a subsequent written amplification of his decision, the trial judge also

addressed defendant's argument, raised for the first time in the trial de novo,

"that the municipal [court] judge had an intolerable conflict of interest because

at some point in the past the municipal court judge served as counsel for . . .

Branchburg Township [and its] Police Department while sitting as a municipal

court judge." Defendant supplied a copy of a brief the judge had filed in that

matter in his role as the Township's and the Department's attorney in support of

a motion to dismiss several counts of a complaint a police officer employed by

the Township had filed under New Jersey's Law Against Discrimination,

N.J.S.A. 10:5-1 to -50. Even though that matter did not involve defendant,

Bound Brook, the Bound Brook Police Department, or any of the officers

involved in the present matter, defendant argued that the judge's representation

of any police department in his capacity as private attorney created the

appearance of a conflict which barred him from presiding over any case

concerning any police officers.

Citing Rule 3:23-8(a), the trial judge found that because defendant failed

to raise this contention in the first instance before the municipal court, either at

the original trial or in a motion for post-conviction relief, he was barred from

doing so at the trial de novo. This appeal followed.

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On appeal, defendant raises the following contentions:

I. A Judgment Of Acquittal Must Be Entered On
[Defendant's] Conviction For Disorderly
Conduct Since The Complaint Failed To Provide
The Essential/Proper Facts Supporting The
Arrest For Disorderly Conduct And Thus Failed
To Provide [Defendant] With Proper Notice
Depriving Him Of Due Process And Exposing A
Very Obvious And Exceptional Showing Of
Error.

II. The Law Division, By Convicting [Defendant]
Of Disorderly Conduct Based Upon Post-Arrest
Conduct Acknowledges That [Defendant's]
Arrest For Disorderly Conduct Was False and/or
Unlawful, And Consequently Created A New
Charge Against [Defendant] Without Proper
Notice Thereby Depriving [Defendant] Of His
Due Process Rights Thereby Exposing A Very
Obvious and Exceptional Showing Of Error
Requiring A Judgment Of Acquittal On The
Disorderly Conduct Charge.

III. [Defendant's] Conviction For Disorderly
Conduct Must Be Dismissed As There Is No
Evidence [Defendant] Acted With Purpose As
The Law Division Judge Specifically Found
[Defendant] Guilty Of Disorderly Conduct Based
Upon Post Arrest Conduct, Yet Found
[Defendant] Acted Purposeful Based Upon Pre[-
]Arrest Conduct, Again, Defying The Record
That Clearly Indicates [Defendant] Was Not
Acting Disorderly Pre-Arrest.

IV. The Law Division Applied The Wrong Standard
Of Review Regarding Credibility Assessments
By The Municipal Court Judge.

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V. Even If The Court Is Not Permitted To Expand
The Record On A Trial De Novo Pursuant [To]
R. 3:23-8(a)(2), That Rule, Along With The
Relaxation Rule 1:1-2, Allows The Law Division
Judge To Reverse And Remand The Matter For
A New Trial.

A. [The Municipal Court Judge's]
Representation Of The Branchburg Police
Department While He Was A Municipal
Judge, And Prior To Hearing This Trial
Wherein He Convicted Defendant,
Requires This Court To Either: 1) Enter a
Judgment Of Acquittal On The Disorderly
Conduct Charge, Or 2) Remand And Order
A New Trial Before A Different Judge.

B. Supreme Court's Concerns Regarding
Municipal Courts.

C. Evidence Of [The Municipal Court
Judge's] Judicial Bias Exceedingly In
Favor Of Law Enforcement Requiring His
Credibility Findings To Be Disregarded.

VI. In the Alternative, The Court Should: 1) Enter A
Judgment Of Acquittal On The Disorderly
Conduct Charge Based Upon The Discovery
Violation By The Bound Brook Police
Department For Refusing To Comply With A
Subpoena For Discovery Regarding Policies
Relative To Audio/Video Evidence; Or 2), Order
A New Trial And Remand The Matter To Be
Heard Before A New Judge And Compel The
Bound Brook Police Department To Produce The
Policies Demanded By [Defendant] Prior To
Trial To Be Used For Impeachment Purposes.

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 We have reviewed these contentions in light of the record and the

applicable law and conclude they are without sufficient merit to warrant

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

substantially for the reasons set forth in the trial judge's written opinion and his

subsequent written amplification. 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)).

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).

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 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 the trial court's

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

municipal court judge's credibility findings and his procedural rulings during

the de novo proceedings, was comprehensive and correct.

Affirmed.

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