Opinion
DOCKET NO. A-3777-12T3
04-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LARRY MARTIN, Defendant-Appellant.
D'Jamoos Law, LLC, attorneys for appellant (Shannon Morales D'Jamoos, of counsel and on the briefs). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 3-12. D'Jamoos Law, LLC, attorneys for appellant (Shannon Morales D'Jamoos, of counsel and on the briefs). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Larry Martin appeals his conviction for simple assault, N.J.S.A. 2C:12-1(a), and obstruction of a governmental function, N.J.S.A. 2C:29-1(a). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
On the early evening of November 20, 2008, shortly after the end of his shift as a police officer in Jersey City, Martin went to the Jersey City apartment of his then-girlfriend, Kimberly Glaze. She lived in the second-floor apartment of a two-family home. Glaze had returned from the hospital the prior day.
Just after Martin arrived, Glaze and her mother, who was visiting Glaze, got into an argument. Martin's daughter and grandchild were also present. Glaze's sister Jeanene, who lived nearby, arrived and joined in the argument. Martin became "upset" and "annoyed" at Jeanene's presence and the ensuing "commotion." Glaze eventually told her mother and Jeanene to leave. Martin's daughter and granddaughter remained in the apartment.
At the time of his arrival, Martin was still in uniform and carrying his service weapon in a holster. After Glaze's mother and sister left, Martin removed his weapon, disabled it, and placed it underneath clothes in a hamper in Glaze's bedroom.
Shortly after she left the apartment, Jeanene called for emergency medical services for her sister. Two emergency medical technicians (EMTs), Pedro Saldanha and Daniel Sacks, arrived in front of Glaze's building and were flagged down by her mother and sister. They asked the EMTs to check on Glaze because they were worried about her health. They led the EMTs upstairs to the door of the apartment.
After hearing knocking at the door, Martin told the EMTs to come inside. Saldanha entered and saw Martin sitting next to Glaze. He asked Martin if anyone needed medical treatment. Martin responded that there was no problem. When Martin asked Glaze whether she required medical attention, she denied needing any. Martin told Saldanha to find out who called and ask them who needed treatment.
At that point, Sacks pulled Saldanha out of the room and told him that one of the family members had informed him that Martin had a gun. Although neither of the EMTs saw the gun, they both left the apartment and contacted the dispatcher, who contacted the Jersey City Police Department.
Officers Muhammad Riaz and Bellon subsequently arrived at the apartment. According to Riaz, the EMTs told him that they had seen a handgun on Martin's hip in a holster. Riaz contacted his sergeant, who told him to "secure the perimeter of the building, including the hallway, the stairs, [and] the back of the building." Riaz and Bellon followed the sergeant's instructions. After calling for backup, Riaz attempted to enter the apartment, but the apartment door was locked.
Lieutenant Thomas Cowuan heard communications over the radio concerning "a female having chest pains" who was "not being afforded the opportunity for treatment." When Cowuan arrived at the scene, he found ten or more police vehicles "up and down the block." He spoke to Jeanene, who told him that her sister was ill, had recently been in the hospital, and was not being permitted to receive treatment. She also told Cowuan that a man in the apartment named Larry had a gun.
A recording of the radio communications was played at trial.
Officers Victor Cook and Anthony Moschella, members of Jersey City Police Department's Tactical Response Unit, arrived at the scene and reported to Cowuan. They then donned their tactical equipment, including heavy weapons, ballistic helmets, and vests. Moschella carried a ballistics shield.
Cook and Moschella were informed that there was a female in the apartment having chest pains and a man inside armed with a gun. They understood it to be a hostage situation and proceeded to secure the stairwell leading to the apartment. At that point, Glaze left the apartment and the officers guided her down the stairs. Glaze was met by Cowuan, who thought she looked very ill. He escorted her to a waiting ambulance. However, she refused medical treatment.
Cook and Moschella tied off the door with a rope in order to control who entered and exited the apartment. Martin recalled seeing Moschella in uniform through a crack in the door before it was secured. He did not, however, ask Moschella why he was there or whether he needed any help. Martin testified that he thought the police had been called because of Jeanene's behavior in requesting medical assistance without reason.
Jersey City Police Detective Joseph Walsh, an FBI-trained hostage negotiator, then arrived at the scene. He was told by the EMTs that they had been in the apartment, but left after they learned that the male had a gun. Walsh also spoke to Glaze, who initially told him that no one was left in the apartment. After Walsh told her that the lights in the apartment were going on and off, she admitted that a man named Larry was in the apartment. Glaze suggested that Walsh speak with Martin and gave him his phone number.
According to Walsh, he telephoned Martin and identified himself as a member of the Jersey City Police Department. He said that he wanted to check on the welfare of anyone in the apartment because there was a report of a male with a gun at the location. Walsh testified that Martin responded that he was upset with whoever had called the EMTs, explaining that no one was injured or needed any help. Martin told Walsh he wanted to sign a complaint against whoever made the call. Martin then told Walsh that he did not want to let anyone in the apartment and that he was "off-duty." Martin then hung up.
When Walsh called a second time, he asked Martin if he was a police officer. According to Walsh, Martin failed to clarify the situation, and never told Walsh that he was also a police officer. He told Walsh that he had misunderstood him, and that what he had really meant by "off-duty" was "my time's my time." Walsh again asked for entry to the apartment, and Martin told him to ask Glaze.
Martin's daughter testified that she recalled hearing her father on the phone with someone who was trying to get him to leave the apartment. She heard her father refuse and state that he did not do anything wrong and that the caller needed to talk to the people who were already outside.
Martin testified that he received a few calls while he was in the apartment, but he did not know he was speaking with a law enforcement officer because Walsh never identified himself. Martin testified that he told the caller that he should get permission from Glaze to enter the apartment, explaining that he knew that she had left and "knew she was accessible to [the caller]." According to Martin, he could not recall any other details of the telephone conversations. Martin maintained that he did not know there were any police units or an ongoing tactical operations in the vicinity.
Glaze was taken to an apartment nearby because it was cold outside. Walsh went to that apartment, which had become a "command center" for the police on the scene. When Walsh arrived, he saw Glaze on the phone with Martin and immediately took the phone from her. He spoke with Martin, who told him that the apartment door was locked. He told Martin that he would call him back. Glaze then consented to the officers' entry into the apartment. Walsh notified Cook and Moschella and headed to Glaze's apartment.
When Walsh arrived at Glaze's apartment building, he called Martin from the bottom of the stairwell leading to the apartment. He told Martin that the emergency squad was outside and advised him to open the door. He told Cook and Moschella, who were securing the scene, that Martin was going to open the door, but would not be able to because it was closed off by the rope. When Cook and Moschella loosened the rope, the door opened and they went inside.
Moschella entered first, carrying his handgun in his left hand and a ballistics shield in his right. Cook followed with his weapon drawn. Both officers immediately recognized "Larry" as Larry Martin, a fellow police officer with whom they had worked on previous occasions.
According to Moschella, when he identified Martin, he put his ballistics shield down and holstered his weapon. Cook also holstered his weapon when he recognized Martin. However, because the call involved a man with a gun, they wanted to secure the scene to make sure Martin did not have a weapon on him and asked Martin to show his hands. They asked him approximately four times, but Martin did not comply. They testified that his hands were behind his back at the time.
Cook and Moschella approached Martin in an attempt to get him to show his hands. Moschella testified that he grabbed Martin's hand, and Martin resisted. Moschella specifically testified that Martin hit and pushed him and grabbed and shoved Cook. Cook testified that Martin grabbed him by his uniform and pulled him onto a couch and that Martin struck him in the shoulder and ripped his shirt. The three men struggled for five minutes until Martin was handcuffed with the help of other officers.
Martin's version of the events was somewhat different. He testified that when Moschella and Cook entered the apartment, Moschella said, "Larry, calm down." Both officers then told him to put his hands up, but Martin, who had just spoken with Walsh on the telephone, did not comply and kept his hands at his sides. Martin testified that he "didn't want to put [his] hands up because [he] had a phone. And many African-American men have been shot dead" when police officers mistook a phone for a gun. Martin testified he "kept [his] hands to [his] side." Martin maintained that his hands were not behind his back and his cell phone was in his right hand.
Martin claimed that the officers approached him aggressively, causing him to back up. Moschella grabbed him first, taking hold of his left arm and wrist, while saying that he was under arrest. According to Martin, he did not submit to the arrest because he did not understand why he was being arrested. Cook grabbed Martin's other arm and twisted it. According to Martin, he was injured during the arrest because the officers used unnecessary force and made the handcuffs too tight, leaving a scar on his left wrist.
Martin subsequently testified that he was "not precisely sure" whether Moschella told him that he was under arrest before he grabbed his left arm.
Martin was arrested and charged with aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a), and resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). He was subsequently charged with obstructing the administration of law. N.J.S.A. 2C:29-1(a). On June 22, 2009, Martin filed complaints against Cook and Moschella, charging them with simple assault.
The complaints were tried on December 22, 2011, before a judge of the North Bergen Municipal Court. On December 29, the judge placed an oral decision on the record, finding Martin guilty of simple assault of Cook and resisting arrest. He made no specific finding with respect to the charge that Martin also assaulted Moschella.
Martin's original charge, aggravated assault by committing simple assault against a police officer, appears to have been downgraded to simple assault. N.J.S.A. 2C:12-1(a).
The judge made no finding with respect to the obstruction charge, because he concluded it was not before him. Nevertheless, the municipal judgment of conviction apparently provided that Martin was guilty of obstruction, but did not reflect a sentence for that charge. The judge imposed a $500 fine and costs on each of the other charges. The judge found no evidence to support Martin's charges against the arresting officers.
The judgment of conviction is not included in our record on appeal.
In reaching his decision, the municipal judge found Saldanha, Cowuan, Walsh, Cook, and Moschella to be credible witnesses. He found Martin's testimony to be "incredible." He did not believe Martin's testimony that he was not aware that he was the focus of a tactical law enforcement operation prior to the arresting officers' entry into the apartment.
Martin appealed to the Law Division. The trial de novo took place on January 25, 2013. The judge found Martin not guilty of resisting arrest. He concluded that the police did not have probable cause to arrest and did not announce an intention to arrest before Martin and the officers became involved in the scuffle.
The judge found Martin guilty of simple assault and obstruction of a governmental function. He determined that the officers were "lawfully acting in the performance of their duties" when they tried to determine whether Martin had a weapon after he did not comply with their request to show his hands.
[T]he officers attempted to ascertain what, if anything, [Martin] had in his concealed hands, which they had a lawful right to do, and was an act necessary for their safety during their investigation, the facts establish beyond a reasonable doubt that this [d]efendant did assault the officers by pulling Officer Cook by the shirt and dragging him off his feet and by hitting Officer Moschella. His conduct as to each officer was sufficient to cause bodily injury and was purposeful.
Those physical acts of force . . . also establish his guilt on the obstruction charge in that he did purposefully prevent
the officers from legally performing an official function, the investigation of [a] report of a man with a gun at [the] location[,] by means of force, or violence, or by means of an independently unlawful act, to wit: the simple assault.
The Law Division judge assessed two $500 fines, one for the obstruction charge and the other for the assault charge. In addition, he imposed $158 in costs and penalties for each of the offenses. This appeal followed.
Martin was subsequently removed from his position as a Jersey City police officer.
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II.
Martin raises the following issues on appeal:
POINT I: DEFENDANT SHOULD HAVE BEEN FOUND NOT GUILTY ON THE CHARGE OF SIMPLE ASSAULT BECAUSE [] THERE WAS NOT SUFFICIENT EVIDENCE IN THE RECORD TO UPHOLD THE FINDING OF GUILT.
A. Simple Assault
B. The Record Before the Law Division Contained Insufficient Evidence to Uphold the Finding of Guilt on the Simple Assault charge
POINT II: DEFENDANT SHOULD HAVE BEEN FOUND NOT GUILTY ON THE CHARGE OF OBSTRUCTION OF ADMINISTRATION OF LAW BECAUSE THERE WAS NOT SUFFICIENT EVIDENCE IN THE RECORD TO UPHOLD THE FINDING OF GUILT.
A. Obstruction of Administration of Law
B. Because the Record Before the Law Division Contained Insufficient Evidence to Uphold the finding of Guilt on Simple Assault, The Record Was Also Insufficient to Establish Guilt on the Obstruction of Administration of Law Charge
Our role in an appeal such as this is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). The Law Division determination is de novo on the record from the municipal court. R. 3:23-8(a). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). In addition, "[u]nder the two-court rule," only "a very obvious and exceptional showing of error" will support setting aside "concurrent findings of facts and credibility determinations made by" the Law Division and the municipal court. State v. Locurto, 157 N.J. 463, 474 (1999). Nevertheless, our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
N.J.S.A. 2C:12-1(a)(1) provides that a simple assault occurs when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:11-1(a) defines "[b]odily injury" as "physical pain, illness or any impairment of physical condition."
N.J.S.A. 2C:29-1(a) provides, in relevant part, that "[a] person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act."
Having reviewed the record, we find ample support for the Law Division judge's findings that Martin committed both a simple assault and obstruction of the administration of the law. The municipal judge found the testimony of the police officers to be credible. Although the Law Division judge did not make a specific finding in that regard, it is implicit in his factual findings that he credited the State's evidence and did not credit Martin's testimony that the police officers used excessive force and that he was merely defending himself.
As the Law Division judge correctly observed, the fact that Martin was a police officer and allowed to carry a weapon did not mean that he would not misuse the weapon. The officers had every right to determine the location of Martin's service weapon to ensure that he was not holding it behind him when he refused to raise his hands. Under the circumstances, Martin actions in "pulling Officer Cook by the shirt," "dragging him off his feet," and "hitting Officer Moschella" supported a finding, beyond a reasonable doubt, that Martin committed a simple assault and had purposefully obstructed the administration of law. Martin's acts were clearly performed with the requisite intent.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION