NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Stack Williams appeals from his conviction for fourth-degree resisting arrest, N.J.S.A. 2C:29-2a, and the assessment of a $30 LEOTEF penalty. We affirm defendant's conviction. However, the State concedes the judge improperly sentenced defendant for a fourth-degree crime, even though he was convicted of a disorderly-persons offense. The State further concedes the LEOTEF penalty was improperly assessed. We therefore remand the matter for entry of an amended judgment of conviction and resentencing.
I.
In an earlier opinion, we summarized the relevant facts in the case under review:
[O]n February 11, 2006, defendant observed L.H. and L.C. sitting in L.H.'s car in front of a store in East Orange. When L.H. exited the car to enter the store, defendant approached the car, opened the driver's door, showed L.C. a handgun, and asked her to exit. Defendant drove away after L.C. exited the car.
Later that night, East Orange police located the car, conducted surveillance, and observed defendant and his girlfriend get into the car. The police approached the car and attempted to talk to defendant. Defendant attempted to flee, and punched and kicked the officers, but was eventually detained and handcuffed. Defendant's girlfriend consented to a search of an apartment she shared with defendant and the police located A.R.'s belongings in it. [State v. Williams, No. A-3648-07 (App. Div. Dec. 17, 2010) (slip op. at 2-3).]
On May 15, 2006, defendant was charged under Essex County Indictment No. 06-05-1545 with first-degree carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree resisting arrest, N.J.S.A. 2C:29-2a; and, fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(4). The indictment concerned the February 11, 2006 incident in East Orange.
Defendant was also indicted for an incident which occurred three months earlier in Newark. This indictment alleged defendant robbed A.R. in her office at gun point, demanded her car keys, and took her purse. The indictment charged defendant with first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
In July 2007, the State successfully moved for a joint trial of both indictments. The joint trial began on October 27, 2007. The trial judge dismissed the hindering charge, and a jury found defendant guilty of all remaining charges except for two counts of aggravated assault. Defendant appealed the conviction and we reversed, holding the trial court abused its discretion by joining both cases "because of the overwhelming prejudice to defendant." Williams, supra, slip op. at 10. We remanded for separate trials on each indictment. Ibid.
On September 18, 2012, trial began on the charges arising out of the February 11, 2006 incident in East Orange. At the close of State's evidence, the trial judge dismissed the charges of unlawful possession and possession of a weapon for an unlawful person. The carjacking and robbery charges resulted in a hung jury, and defendant was found not guilty of the aggravated assault charge. The jury found defendant guilty of resisting arrest; however, it further found defendant did not use or threaten physical force while resisting arrest.
On November 30, 2012, the trial judge sentenced defendant for fourth-degree resisting arrest to 364 days in the county jail (time served) and imposed a $30 LEOTEF penalty, required of defendants convicted of degree-offenses. N.J.S.A. 2C:43-3.3. Defendant appealed and raised the following issues for our consideration:
POINT I
DEFENDANT WAS NOT CONVICTED OF FOURTH-DEGREE ARREST, BUT ONLY OF THE DISORDERLY PERSON OFFENSE.
POINT II
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT ANY CONVICTION FOR RESISTING ARREST BECAUSE DETECTIVE BOYD WAS ACTING WITHOUT SUFFICIENT EVIDENCE OF AUTHORITY, AND BECAUSE, IF THE COURT DETERMINES THERE WAS EVIDENCE OF HIS AUTHORITY, THE EVIDENCE WAS INSUFFICIENT TO SHOW AN INTENT TO ARREST.
A. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONCLUSION THAT DEFENDANT KNEW OR SHOULD HAVE KNOWN THAT DETECTIVE BOYD WAS A POLICE OFFICER.
B. THE EVIDENCE MAY HAVE SUPPORTED A CONVICTION FOR OBSTRUCTION OF JUSTICE BUT IT DID NOT SUPPORT A CONVICTION FOR RESISTING ARREST.
POINT III
THE [LEOTEF] PENALTY, BY ITS TERMS APPLIES TO CRIMES, NOT DISORDERLY PERSONS OFFENSES AND MUST BE VACATED.
II.
Defendant contends, and the State agrees, that the jury's verdict only supports a disorderly-person's offense of resisting arrest, not a fourth-degree offense. We address the point briefly.
N.J.S.A. 2C:29-2a provides:
[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. . . . [A] person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. . . . An offense . . . is a crime of the third degree if the person:
(a) Uses or threatens to use physical force or violence against the law enforcement officer or another; or
(b) Uses any other means to create a substantial risk of causing physical injury to the public servant or another.
We explained in State v. Simms, 369 N.J.Super. 466, 470 (App. Div. 2004),
The basic offense of resisting arrest, that is, purposely preventing or attempting to prevent a law enforcement officer from effecting an arrest, is a disorderly persons offense. It is raised to a fourth-degree crime if the prevention or attempted prevention of the arrest is accomplished by flight. Whether or not flight is involved, however, if the resistance is accompanied by physical force or violence against the officer, the crime is of the third degree.
The judge instructed the jury on the necessary elements of the "basic offense of resisting arrest." The judge also provided further instructions on third-degree resisting arrest, by requiring the jury to find whether defendant used or threatened physical force. The jury was never instructed on fourth-degree resisting arrest, which would have required the jury to find the necessary element of defendant's flight.
The jury found defendant guilty of the basic offense of resisting arrest, but also found defendant did not use or threaten force. The jury never addressed the issue of flight. At sentencing, however, the judge noted defendant was convicted of "resisting arrest, fourth degree."
We agree with both defendant and the State that the jury's conviction of defendant supports only the basic offense of resisting arrest and not fourth-degree resisting arrest requiring flight. As a result, we vacate the judgment of conviction for fourth-degree resisting arrest and remand the matter to the trial court to enter an amended judgment of conviction reflecting defendant's conviction of the disorderly-persons offense of resisting arrest.
Defendant and the State also both agree that the LEOTEF penalty imposed on defendant should likewise be vacated. This penalty is assessed only for a defendant convicted of a "crime." N.J.S.A. 2C:43-3.3a. Accordingly, as defendant was convicted only of the disorderly-persons offense of resisting arrest, we vacate the LEOTEF penalty.
The defendant also asserts that there was insufficient evidence to support his conviction for resisting arrest. We disagree. When considering whether there is sufficient evidence to support a conviction, we must view the evidence in its entirety, give the State the benefit of all favorable evidence as well as the inferences that could reasonably be drawn from that evidence, and determine whether a jury could reasonably find defendant guilty beyond a reasonable doubt. State v. Josephs, 174 N.J. 44, 80 (2002) (citing State v. Reyes, 50 N.J. 454, 459 (1967)). We are satisfied there is sufficient evidence to support the jury's verdict in this case.
As noted, a person is guilty of resisting arrest if he "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(1). "The failure to announce that defendant was under arrest would only be one factor to be considered in the overall sequence of events leading to the arrest." State v. Branch, 301 N.J.Super. 307, 321 (App. Div. 1997), rev'd on other grounds, 155 N.J. 317, 319 (1998).
Defendant's main argument is that there is insufficient evidence to support his conviction because he did not know that a police officer was attempting to arrest him. Defendant asserts Detective Boyd's self-identification of "stop, police," coupled with the unmarked car, failed to provide defendant with a substantial reason to believe Detective Boyd was a police officer. Defendant also argues he did not know Detective Boyd was attempting to arrest him. These arguments lack merit.
The trial record provides sufficient evidence for a reasonable jury to conclude defendant resisted arrest. After Detective Boyd identified himself and ordered defendant to stop, defendant ran seven to ten feet before Detective Boyd was able to reach him. Although defendant argues an officer simply stating "stop, police" is insufficient for defendant to know he was under arrest, the detective's failure to earlier state his intent to arrest was only one factor for the jury to consider when determining if defendant resisted arrest. The jury was free to accept the officers' testimonies that defendant resisted after Detective Boyd identified himself as the police, and could reasonably find defendant knew, or had reason to know, he was subject to arrest as he had just exited a stolen car. Viewing the evidence in its entirety, with the benefit of all favorable evidence to the State, we are satisfied a jury could reasonably find defendant guilty beyond a reasonable doubt.
We agree, however, that the record only supports a conviction of the disorderly-persons offense of resisting arrest. The jury was not charged on fourth-degree resisting arrest, which requires flight, and thus was not asked to determine if defendant attempted to flee. As a result, we vacate the judgment of conviction for fourth-degree resisting arrest and remand the matter to the trial court to enter an amended judgment of conviction reflecting defendant's conviction of the disorderly persons offense of resisting arrest.1
Affirmed. Remanded for entry of an amended judgment of conviction and re-sentencing.
