NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals from his de novo conviction for resisting arrest, N.J.S.A. 2C:29-2(a). We affirm.
We discern the following facts from the record. On March 22, 2013, defendant was observed operating his motor vehicle with no visible registration plate by a Haddon Township Police officer. The officer followed defendant into the parking lot of a tire store and initiated a stop. Defendant got out of his vehicle and approached the officer's patrol vehicle and told her to wait because he needed to buy tires. The officer ordered him to return to his vehicle at least two times. The officer thereafter informed defendant that she had stopped him because of missing registration plates, requested defendant's credentials several times, and advised him again to remain in his vehicle.
As the officer was writing the appropriate motor vehicle tickets for the observed violations, defendant continued to yell from his vehicle that he needed to buy tires. A second officer arrived to assist. An employee of the tire store approached defendant's truck and defendant attempted to hand him cash for tires. The first officer told the employee she needed to finish her job and directed him to get away from defendant's truck because it was a safety issue. Another employee began to linger in front of defendant's vehicle and the officer directed him away from the vehicle. The first officer continued writing the tickets and approached defendant's truck to give him the tickets. Defendant grabbed the tickets from the officer's hands and said, "Are you happy now, you fucking bitch?"
The officer then informed defendant of his mandatory court date and began to return to her patrol car when defendant exited his vehicle and directed a series of expletives at the officer. She told defendant to return to his car, to which defendant responded, "Fuck you.... You're not going to arrest me." Defendant then leaned against the truck. The officer advised defendant to return to his car or he would be subject to arrest for disorderly conduct, to which defendant again replied using profanity while leaning against the truck.
Both officers then approached defendant and advised him he was under arrest for disorderly conduct. The second officer ordered defendant to put his hands behind his back. Defendant was holding on to the vehicle and told the officers he was not under arrest and was yelling obscenities.
The officers told defendant repeatedly that he was under arrest and he was instructed to release his grip from the vehicle. The officers eventually took defendant to the ground and handcuffed him. They then stood him next to the patrol vehicle so he could lean on it because he said he was having difficulty breathing. The officers retrieved oxygen to give to defendant and called for an ambulance. After the ambulance arrived, defendant was placed on a stretcher and ultimately taken to the hospital.
Defendant was charged with disorderly conduct, N.J.S.A. 2C:33-2(a)(1), resisting arrest, N.J.S.A. 2C:29-2(a)(1), and two motor vehicle violations. Defendant accepted responsibility for the motor vehicle violations but contested the other charges. During the municipal court trial, both officers testified as to the events. Defendant's family physician, Dr. David Gigliotti, testified regarding defendant's medical history which included arthritis, a lung condition, hearing loss, and bilateral knee pain. Dr. Gigliotti offered an opinion that defendant's resistance was related to medical conditions. The municipal court found the doctor's testimony unpersuasive and found defendant guilty of both resisting arrest and disorderly conduct. After a trial de novo, the Law Division judge overturned the conviction for disorderly conduct but affirmed the conviction for resisting arrest.
On appeal, defendant raises the following arguments:
I. STANDARD OF REVIEW.
II. RESISTING ARREST.
A. MR. SAPONARA'S CONVICTION FOR RESISTING ARREST MUST BE REVERSED BY THIS COURT BECAUSE THE STATE FAILED TO SHOW IN SUPERIOR COURT, THAT MR. SAPONARA KNEW HE WAS BEING ARRESTED AND THAT HE INTENTIONALLY RESISTED ARREST, BEYOND A REASONABLE DOUBT.
B. MR. SAPONARA[] DID NOT PURPOSEFULLY RESIST ARREST[.] RATHER[,] HIS MEDICAL CONDITION AND AILMENTS WERE THE CAUSE OF HIS INCAPABILITY TO COMPLY BECAUSE OF HIS INABILITY TO BALANCE, ROTATE HIS ARM BACK, AND STAY FULLY CONSCIOUS, THUS THE STATE HAS NOT MET ITS BURDEN TO SHOW PURPOSEFUL RESISTANCE OF AN ARREST BEYOND A REASONABLE DOUBT.
C. THIS COURT MUST OVERTURN THE LOWER COURTS[`] CONVICTION BECAUSE [THE] EVIDENCE DOES NOT SUPPORT CONVICTION.
III. INADMISSIBLE HEARSAY.
A. THE CROSS-EXAMINATION OF THE DEFENSE'S EXPERT WITNESS AT TRIAL WAS NOT PROPER BECAUSE THE LINE OF QUESTIONS WAS NOT THE BASIS OF THE EXPERT WITNESS[`S] TESTIMONY [] AND [BECAUSE IT] IMPEACHED BOTH THE WITNESS AND MR. SAPONARA'S CREDIBILITY WHEN HE DID NOT TAKE THE STAND.
B. [THE] STATE WAS ALLOWED TO BRING IN TESTIMONY DURING TRIAL THAT WAS NOT THE BASIS OF THE EXPERT WITNESS[`S] TESTIMONY, THUS TAINTING DR. GIGLIOTTI'S TESTIMONY AND MR. SAPONARA'S CREDIBILITY, AFFECTING THE RESULT.
C. THE CONVICTION SHOULD BE OVERTURNED BECAUSE THE LAW DIVISION DID NOT ADDRESS THE TRIAL COURT[`]S VIOLATION OF MR. SAPONARA'S CONSTITUTIONAL RIGHTS WHERE MR. SAPONARA DID NOT TESTIFY AND SHOULD NOT HAVE BEEN COMPELLED TO DEFEND HIS CHARACTER.
We use a deferential standard when reviewing the decisions of the Law Division and the municipal court. State v. Stas, 212 N.J. 37, 48 (2012). This requires us to consider "`whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" Id. at 49 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Despite this, "no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts." Ibid.
An individual is guilty of the disorderly persons offense of resisting arrest "if he [or she] purposefully prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(1). When establishing a case for resisting arrest, "the State must prove beyond a reasonable doubt that it was defendant's conscious object to prevent his [or her] arrest." State v. Ambroselli, 356 N.J.Super. 377, 384-85 (App. Div. 2003). Thus, the offense 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).
The Law Division's finding that defendant resisted arrest is supported by sufficient credible evidence in the record. Although the municipal court judge did not make specific findings regarding the police officers, the Law Division judge found that the officers' testimony and the video were "extremely consistent" and found the officers' testimony credible.
A review of the record demonstrates that defendant knew the first police officer pulled him over after the officer turned on her overhead lights. Defendant subsequently accepted the traffic tickets from her. Both officers on the scene told defendant he was going to be arrested if he did not return to his car, and then they told him he was under arrest after he refused to do so.
Defendant argues that he immediately leaned against the car after exiting it and was holding onto the vehicle for balance. However, the record supports the judge's findings that defendant's conduct constituted a conscious object to resist arrest. The officers' testimony indicates that defendant told them he was not under arrest and refused to return to the car. The video and arresting officers' testimony refutes defendant's assertion that his grip on the vehicle was for more than mere support, but was rather an attempt to prevent the police from handcuffing him.
Defendant's arguments that his medical conditions prevented him from knowing he was under arrest and purposefully resisting arrest are also unpersuasive. Defendant asserts that he has impaired hearing and did not hear the officers' commands; however, the record supports that defendant knew he was under arrest because he argued with the officers saying that he was not under arrest and was using profanity.
Defendant told the officers he had a bad arm when the police were trying to put his arm behind his back. However, the video also shows defendant gripping the truck rather tightly with his other arm, as opposed to just leaning on it for support. Additionally, the municipal court judge found Dr. Gigliotti's opinion regarding the video to be not credible and unhelpful to the court, which the Law Division judge accepted. Given the Appellate Division's deference to the Law Division's credibility and fact findings, defendant's argument is unsupported by the record. See Stas, supra, 212 N.J. at 48-49.
Defendant's additional arguments that the State's cross-examination of Dr. Gigliotti was improper and that defendant's right to remain silent was violated lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2). We add the following brief remarks about the cross-examination.
Defendant and his wife recounted the events to Dr. Gigliotti a few days after the incident. Dr. Gigliotti provided testimony on cross-examination about those statements which was admissible under a number of hearsay exceptions including N.J.R.E. 703 (bases of opinion testimony by expert) and 803(c)(4) (statements for purpose of a medical diagnosis). Any perceptible error concerning cross-examination of Dr. Gigliotti is harmless given the de novo review by the Law Division judge, who made his determination based on a thorough review of the record and found ample evidence, as established by the officers' testimony, to support the charges.
Affirmed.
