NOT FOR PUBLICATION WITHOUT THE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-1485-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAIME H. FERNANDEZ,
Defendant-Appellant.
Submitted May 10, 2017 – Decided July 18, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 14-04-0388.
Joseph E. Krakora, Public Defender, attorney
for appellant (Louis H. Miron, Designated
Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Paula Jordao,
Assistant Prosecutor, on the brief).
PER CURIAM
Tried by a jury, defendant Jaime H. Fernandez was convicted
of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a), and
acquitted of third-degree aggravated assault on a law enforcement
official, N.J.S.A. 2C:12-1b(5)(a). On May 21, 2015, he was
sentenced to two years' probation, 180 days of county jail time,
and appropriate fines, penalties, and assessments. He appeals and
we affirm.
At the trial, two Mount Olive Township police officers
testified on behalf of the State. Sergeant Anthony Annecchiarico
testified that he drove to defendant's residence to serve him with
a temporary restraining order issued under the Domestic Violence
Act. See N.J.S.A. 2C:25-17 to -35. The order required defendant
to turn over the parties' seven-year-old son to his former wife.
Patrolman Anthony Hering accompanied Annecchiarico.
When the two officers arrived at defendant's home at
approximately 5:45, defendant's girlfriend and the child were at
the home, but defendant was not. Defendant's girlfriend spoke
with the officers and told them she would need to speak with
defendant before she would agree to turn the child over. She
called defendant, and he told her he was on his way home.
Annecchiarico overheard "yelling from the other end of the phone"
during their conversation.
Annecchiarico returned to his patrol car to await defendant's
arrival. He saw defendant park next to Hering's vehicle. As
Annecchiarico left his patrol car, he heard defendant yelling. He
saw defendant crossing toward Hering with his hands clenched while
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moving his arms, screaming at Hering. Defendant lifted his shirt
and yelled "I don't have no gun, you're gonna have to shoot me,
m----- f-----." Annecchiarico told him that "nobody has to die,
relax, calm down[,]" but had to use pepper spray to attempt to
subdue defendant while Hering took him to the ground. Once
defendant was on the ground, Annecchiarico was able to handcuff
one arm, but defendant struggled to keep his other arm from being
restrained. Annecchiarico called for an ambulance once he saw
that defendant had been injured during the altercation.
Hering, who had been present when defendant's girlfriend
called him, also heard "a lot of yelling" over the phone. After
waiting in his patrol car some ten to fifteen minutes, he saw
defendant drive into the parking lot, heading towards him. He
said that defendant "[a]lmost struck my patrol vehicle and parked
next to me on my right side . . . [l]ess than a door length" away.
Defendant left his truck while screaming "f---, f---."
Defendant charged at Hering yelling "no, no," and "you're not
going to take my kid you m----- f-----." Hering said defendant
was enraged, his eyes "bulging out of his head," and his face
bright red. Defendant had a set of keys in his right fist wedged
between his fingers. Hering was afraid that defendant was going
to kill him.
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Hering ordered defendant to take a step back and defendant
repeated, "you're not going to take my kid, you m----- f-----.
You're gonna have to kill me to take my son." Hering attempted
to grab defendant's arm to place him in a compliance hold, and
defendant ignored his commands. He ripped his arm out of Hering's
grasp, yelled "don't touch me," and went towards the back of his
pickup truck, "beating his chest" and yelling "kill me, kill me."
When Annecchiarico ran over to assist Hering, defendant
yelled "I ain't got no guns you m----- f-----[.]" Hering tried
to sweep defendant's leg to get him to the ground, but it was not
until he grabbed defendant's shoulders that he succeeded in doing
so. Defendant continued to struggle once on the ground. Hering
was injured as a result of the struggle, scraping his hands.
Neither officer told defendant that he was under arrest.
The video played for the jury from Annecchiarico's patrol car
opens with defendant screaming foul expletives, and Annecchiarico
telling him to "relax, stop yelling." On the tape, defendant is
heard to yell "[g]et off me, I don't have no gun, I don't have no
gun, you'll have to kill me, m----- f-----." The officers can be
heard telling defendant to relax, while an unidentified female
voice can be heard saying "Jaime, stop, stop."
Defendant's girlfriend testified that when she arrived at the
parking lot she saw the police hitting defendant, and that Hering
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punched him two or three times in the face. Defendant's girlfriend
also claimed that the officers were kneeling on him, rubbing his
face on the ground, and that he had blood all over his face. When
she told the officers to stop, she said one of them pushed her
away. She saw defendant leave in an ambulance.
After the State rested its case, defendant moved for acquittal
on both charges. He argued that in order to resist arrest, a
person has to be under arrest, and that at the time of the incident,
defendant was not under arrest for anything. The judge denied the
motion, holding that given the State's proofs, a reasonable jury
could readily find defendant guilty.
During the charge conference, the judge read the proposed
jury instructions to the attorneys, and asked if they had any
objections. The judge agreed with the modifications defense
counsel suggested. Defense counsel also briefly raised the issue
of the "justification" defense to resisting arrest, but added "I'm
not suggesting that you charge justification. And the reason why
I say that is because I think Your Honor's correct that the
defendant has to testify in order to allow that request."
Immediately after the judge charged the jury, he asked counsel at
sidebar if they had any comments or request for additional charges.
They did not.
5 A-1485-15T2
During Hering's cross-examination, the judge instructed the
jury as follows:
Ladies and gentlemen, I just want to
clarify something for you, okay. If the
arrest is a legal arrest, the police do not
need to announce it, okay. The facts must
simply show that the defendant knew he was
being arrested and he nevertheless resisted.
Now, in contrast, if the arrest if an
unlawful arrest, then the officer has to
announce his intention to arrest, all right.
Unless of course the officer was acting under
color of official authority, okay.
Now, I don't expect you to remember that
right now. In other words, if it's a lawful
arrest, then they don't have to announce it.
But the facts would have to simply indicate
that the defendant knew he was being . . .
arrested and he nevertheless resisted.
That's a factual determination that you
would make, okay.
If you should determine that it was an
unlawful arrest, all right, the officer would
have to announce the intention to arrest the
defendant before he resisted, unless the
officer was acting under color of official
authority.
All right? So if it's an unlawful arrest
and you find it, it's an unlawful arrest, he
has to announce his intention to arrest.
Now that you may not be clear, but it's
now 20 minutes to four and I'm going to charge
you, do you follow me, at the appropriate
time. If you want, when you come out here
tomorrow morning, if you want me to go over
that again, I will go over it again, all right.
6 A-1485-15T2
The following morning, immediately after the jury entered the
courtroom, the judge instructed as follows:
All right. Good morning, ladies and
gentlemen. I see that you're all here. Before
we continue with the cross examination of the
witness I don't believe that I misspoke
yesterday, but I want to make sure that I
didn't with respect to, I'll call it, the
announcement issue, okay? Again, I don't
think I did. The attorneys don't think I did.
But I'm going to ask you to disregard what I
said and I will instruct you once again, okay?
If the arrest is legal the police do not
need to announce it. The facts must simply
show that the defendant knew he was being
arrested and he, nevertheless, resisted. The
lack of an announcement that the defendant was
being placed under arrest, however, could be
considered by you if you choose to do so in
evaluating or determining defendant's guilt.
It is a factor you can consider along
with all other factors in the sequence of the
events.
Now, if you should find that the arrest
was unlawful the officer or one of them acting
under color of official authority would have
to announce the intention to arrest before the
defendant resist. Okay?
Anybody want me to repeat it again, raise
your hand and I will. No one's raised their
hand. All right, let's continue.
During his final charge, the judge gave the jury the Model
Jury Charge instruction on resisting arrest, including the
distinction between lawful and unlawful arrest:
7 A-1485-15T2
The first element the State must prove
beyond a reasonable doubt is that Hering was
a law enforcement officer.
A law enforcement officer is a person
whose public duties include the power to act
as an officer for the detention, detection,
apprehension, arrest and conviction of
offenders against the laws of this state.
The second element that the State must
prove beyond a reasonable doubt is that Hering
was effecting an arrest.
It is not a defense to prosecution under
this subsection that the law enforcement
officer was acting unlawfully in making the
arrest provided he was acting under color of
his official authority. And provided the
officer announces his intention to arrest
prior to the resistance.
On appeal, defendant raises the following points for our
consideration:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING FERNANDEZ'S MOTION FOR ACQUITTAL AT
THE CONCLUSION OF THE STATE'S CASE WITH
RESPECT TO THE RESISTING ARREST COUNT BECAUSE
THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE
FERNANDEZ GUILTY OF THE CHARGE BEYOND A
REASONABLE DOUBT.
II. THE TRIAL COURT'S JURY CHARGE REGARDING
RESISTING ARREST WAS MISLEADING, AMBIGUOUS AND
FATALLY DEFECTIVE BECAUSE IT FAILED TO
DISTINGUISH CLEARLY THE POLICE OFFICER'S
OBLIGATIONS AND DEFENDANT'S RESPONSE THERETO
IN THE CONTEXT OF A LEGAL ARREST AND IN THE
CONTEXT OF AN ILLEGAL ARREST.
8 A-1485-15T2
III. THE TRIAL COURT SHOULD HAVE INSTRUCTED
THE JURY CONCERNING THE JUSTIFICATION DEFENSE
TO THE RESISTING ARREST CHARGE.
I.
We review de novo a claim that a trial court erred in denying
a motion for acquittal on the basis of insufficiency of the
evidence. State v. Dekowski, 218 N.J. 596, 608 (2014). We apply
the same standard as the trial court, asking: "whether, based on
the entirety of the evidence and after giving the State the benefit
of all its favorable testimony and all the favorable inferences
drawn from that testimony, a reasonable jury could find guilt
beyond a reasonable doubt." Ibid. (quoting State v. Williams, 218
N.J. 576, 594 (2012)).
If a party did not object at trial to the jury instructions,
they are reviewed for plain error and reversed only if "such an
error was 'clearly capable of producing an unjust result.'" State
v. Miller, 205 N.J. 109, 126-127 (2011) (quoting R. 2:10-2).
Appellate review of a jury instruction requires "not only scrutiny
of the charge itself, but an inquiry as to whether an erroneous
charge may have affected the trial's result." Washington v. Perez,
219 N.J. 338, 351 (2014). Erroneous jury instructions are not
reversed if "incapable of producing an unjust result or prejudicing
substantial rights." Ibid. (quoting Mandal v. Port Auth. of N.Y.
& N.J., 430 N.J. Super. 287, 296 (App. Div.) certif. denied, 216
9 A-1485-15T2
N.J. 4 (2013)). However, "where the jury outcome might have been
different had the jury been instructed correctly," erroneous jury
instructions constitute reversible error. Ibid. (quoting
Velazquez v. Portadin, 163 N.J. 677, 688 (2000)).
II.
Defendant contends that his motion for acquittal on the
resisting arrest charge should have been granted as the State's
evidence was insufficient to prove guilt beyond a reasonable doubt.
The statute makes an actor guilty of resisting arrest if "he
purposely prevents or attempts to prevent a law enforcement officer
from effecting an arrest," and either "[u]ses or threatens to use
physical force or violence against the law enforcement officer or
another; or [u]ses any other means to create a substantial risk
of physical injury to the public servant or another."
Resisting arrest "requires a culpability of purpose." State
v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997). A defendant
therefore must be aware that police are attempting to effectuate
an arrest to be guilty of resisting it. Ibid. However, if an
arrest is lawful, a police officer's failure to announce that
defendant is under arrest does not warrant an acquittal on its
own. Ibid. It is merely "one factor to be considered in the
overall sequence of events leading to the arrest." Ibid. If a
reasonable jury could find that, based on the circumstances,
10 A-1485-15T2
defendant knew police were attempting to make an arrest, and
defendant resisted that arrest, there is sufficient evidence to
uphold a conviction. Ibid.
Regarding an unlawful arrest, N.J.S.A. 2C:29-2 specifically
provides that "[i]t is not a defense to a prosecution under this
subsection that the law enforcement officer was acting unlawfully
in making the arrest, provided he was acting under color of his
official authority and provided the law enforcement officer
announces his intention to arrest prior to the resistance."
(Emphasis added). Thus, if the State failed to prove that police
had announced their intention to arrest defendant before his
resistance, he could not be convicted of resisting an unlawful
arrest pursuant to N.J.S.A. 2C:29-2. State v. Kane, 303 N.J.
Super. 167, 182 (App. Div. 1997).
It is undisputed that the officers did not announce their
intention to arrest defendant. It is equally obvious, from the
videotape and the testimony of the officers, that defendant, from
the moment he arrived at the parking lot, threatened Hering.
Defendant nearly struck Hering's patrol vehicle, and he screamed,
yelled obscenities, and charged at the officer. Defendant also
said that he was not going to allow his child to be taken.
Defendant's argument that the failure to announce in this
case invalidated the legitimacy of the arrest, and somehow
11 A-1485-15T2
therefore nullified the resisting arrest charge, lacks merit.
Although the officers had no intent to arrest defendant when they
arrived at his home, defendant's behavior posed a threat to the
officers' safety and the safety of others, and thus made his arrest
a necessity.1
In State v. Brown, 205 N.J. 133 (2011), the Court considered
a similar scenario in which, although the police initially had no
authority to arrest the defendant, the defendant's behavior in a
public place, like the parking lot here, made their warrantless
arrest lawful. Only when defendant charged at Hering, lost control
of his temper, and became threatening, was probable cause to make
a lawful arrest established. Defendant was threatening to the
officers, and his behavior posed a threat to others in the parking
lot as well. Defendant was also obstructing the administration
of justice, itself a crime. As defendant said, he was willing to
die in order to prevent them from fulfilling their duties.
In Brown, the officers arrived at the defendant's
girlfriend's apartment to arrest him, but their warrants were
invalid. Brown, supra, 205 N.J. at 146-47. Defendant had received
a warning phone call from his mother, and fled through a rear
1
We do not address defendant's point that the jury's verdict was
fatally inconsistent. That they did not find an assault was not
inconsistent with finding that defendant resisted arrest.
12 A-1485-15T2
window. Ibid. While on a rooftop, he engaged in a twenty-minute
standoff with police. Ibid. The Court found that even though the
arrest warrants were invalid, the defendant's conduct made their
legality inconsequential. Id. at 147. In similar fashion, in
this case, defendant's behavior was so threatening from the moment
he left his vehicle that the officers had no alternative, once he
did not respond to their efforts to calm him down, but to arrest
him.
N.J.S.A. 2C:29-1(a) makes it an offense for a person to
"prevent[] or attempt[] to prevent a public servant from lawfully
performing an official function by means of . . . intimidation
. . . or physical interference or obstacle." Once defendant
behaved in this fashion, there was no need for the officers to
announce their intent to arrest. In other words, defendant's own
conduct converted what should have been a difficult but peaceful
piece of police business to a potentially violent physical
confrontation. The arrest was lawful, and thus there was no
necessity for the officers to announce their intention.
We are satisfied that a reasonable jury, having heard the
testimony and seen the video, could find guilt beyond a reasonable
doubt.
13 A-1485-15T2
III.
An improper jury instruction that tends to "confuse or mislead
the jury" may require reversal of the verdict. Wade v. Kessler
Inst., 343 N.J. Super. 338, 345 (App. Div. 2001). However, the
trial judge's resisting arrest charge was not improper, it
accurately explained the law, and there is no evidence that it
confused the jury.
The trial judge, virtually word-for-word, instructed the jury
in accordance with the Model Jury Charge for resisting arrest.
See Model Jury Charge (Criminal), "Resisting Arrest" (2007). The
only significant deviation from the model charge was the judge's
explanation of the different requirements for resistance to an
unlawful arrest versus a lawful arrest. The judge had explained
these differences to the jury throughout the trial in addition to
this final charge. The judge's explanation was correct in the
law. See Kane, supra, 303 N.J. Super. at 182; Branch, supra, 301
N.J. Super. at 321.
Shortly after beginning deliberations, the jury asked to see
the video of defendant's arrest. It later sent out a note
requesting the definition of lawful versus unlawful arrest in
writing. In response, the judge said:
First of all I've indicated to you I want you
to consider the jury instructions in their
entirety, okay? So I wouldn't send you in
14 A-1485-15T2
just something that contained a brief portion
of what I instructed you.
But the ultimate issue as to whether or not
the arrest was lawful or unlawful is for you
to determine as the finders of the facts. All
right?
So that's my response to your note.
In this case, whether defendant's arrest was lawful or
unlawful was pivotal. The judge stressed that defendant had to
know that "he was being arrested and he, nevertheless, resisted.
The lack of an announcement that defendant was being placed under
arrest, however, could be considered by you if you choose to do
so in evaluating or determining defendant's guilt."
The judge's response to the juror question was appropriate.
The circumstances in this case left little room for doubt regarding
the necessity of the arrest in order to protect persons at the
scene from defendant's anger. The distinction between lawful and
unlawful arrest was basically and properly left to the jury's
determination as the finders of fact.
No objection was made to the judge's three instructions
regarding the need for a warning if the arrest was unlawful, that
no warning was necessary if the arrest was lawful, and the fact
the jury had to decide guilt accordingly. In the absence of an
objection, we presume instructions are proper and they will not
be disturbed except upon a finding of plain error. R. 2:10-2;
15 A-1485-15T2
State v. O'Caroll, 385 N.J. Super. 211, 235 (App. Div.), certif.
denied, 188 N.J. 489 (2006). Trial counsel agreed with the jury
instructions on resisting arrest, and given the circumstances that
resulted in this indictment, we do not see how the judge's
instruction possessed the clear capacity to bring about an unjust
result.
IV.
Finally, defendant contends that the court should have
instructed the jury regarding the justification defense to the
resisting arrest charge. By telling the judge during the charge
conference that he was "not suggesting you should charge
justification," defense counsel not only acceded to the judge's
decision not to charge justification, but agreed with it. See
Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996) ("The doctrine
of invited error operates to bar a disappointed litigant from
arguing on appeal that an adverse decision below was the product
of error, when that party urged the lower court to adopt the
proposition now alleged to be error.").
It is clear that N.J.S.A. 2C:3-4 allows a person to use force
in resisting an arrest when "the actor reasonably believes such
force is immediately necessary for the purpose of protecting
himself," and the officer is using unlawful force to effect the
arrest. The judge concluded that there were no facts in the record
16 A-1485-15T2
which justified instructing the jury about justification, and we
agree. Although a trial judge must provide jury instructions on
alternate defense theories where supported by even "very slight
evidence[,]" State v. Singleton, 418 N.J. Super. 177, 203 (App.
Div. 2011), no such evidence existed here. The videotape and the
officers' testimony made clear that force was necessary to subdue
defendant because he was so enraged about the TRO that he told the
officers they would have to kill him in order to take away his
child. Nothing in the record indicated that the officers used
unlawful force, and thus there was no basis for the judge to give
the justification defense.
Affirmed.
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