STATE OF NEW JERSEY VS. ROBERT FRANKLIN (22-17, BURLINGTON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2527-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT FRANKLIN,
Defendant-Appellant.
_______________________________
Submitted November 13, 2018 – Decided February 6, 2019
Before Judges Haas and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Municipal Appeal No.
22-17.
Zwerling Law Group, LLC, attorneys for appellant
(David J. Zwerling, on the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Robert Franklin appeals his December 19, 2017 conviction for
disorderly conduct and resisting arrest following a trial de novo in the Law
Division. We affirm.
The pertinent evidence was set forth in the oral decision by Judge Thomas
P. Kelly and need not be repeated in detail here. A brief summary will suffice.
In the mid-afternoon of May 28, 2016, defendant with his godmother,
Kathleen Spinogatti, in the front passenger's seat, drove to a gas station in
Riverside Township. He asked the gas station attendant for fifteen dollars in
gas. After the gas was pumped, defendant and the attendant got into a dispute
over whether defendant tendered a twenty-dollar bill to pay for the gas. The
attendant claimed he was only given two dollars. To resolve the dispute, they
went into the store at the gas station to view the surveillance video of the
transaction. They continued to disagree after viewing the video, and another
attendant called the police.
Riverside Patrol Officers Michael Megara and Timothy Marano
responded to the call. Upon hearing defendant and the attendant's respective
explanations, the officers viewed the video and determined that defendant did
not tender a twenty-dollar bill for payment. Defendant then claimed, according
to Officer Megara, that he gave a two-dollar tip to the attendant and was going
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to pay fifteen dollars for the gas. Officer Megara, bearing in mind the video and
not believing the tip claim, directed defendant to pay the attendant the unpaid
amount of thirteen dollars. Balling thirteen dollars in his fist, defendant punched
his hand into the attendant's hands and let go of the money. Defendant then
called attendant an "Indian," and yelled at him, "stay out of my country." The
attendant counted the money and walked away. After defendant refused
multiple orders by the police officers to leave the gas station, he was told that
he was under arrest. While defendant was yelling, Officer Megara opened the
car door and put one cuff on defendant's left wrist. Defendant held onto the car's
steering wheel and refused to get out of the car. He was then pulled out of the
car and after the other handcuff was placed on his right wrist, he ran into the gas
pump on his own volition. Defendant was issued summonses for disorderly
conduct, N.J.S.A. 2C:33-22(a), resisting arrest, N.J.S.A. 2C29-2(a)(1),
obstructing the administration of law, N.J.S.A. 2C29-1, and driving with a
suspended license, N.J.S.A. 39:3-19.
Prior to the municipal court trial, defendant pled guilty to the motor
vehicle violation. After the trial, in which Spinogatti 1 and Officers Megara and
1
Spinogatti testified that she saw a twenty-dollar bill in defendant's hand prior
to him paying the attendant but she did not see him give the bill to the attendant
because she turned her head away.
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Marano testified, and the surveillance video, police radio log and police report
were admitted into evidence, the municipal court judge reserved judgment.
About a month later, he rendered his oral decision, crediting the video and the
officers' testimony, finding defendant guilty of disorderly conduct and resisting
arrest, and dismissed the obstructing charge by way of merger with the resisting
conviction. Defendant was sentenced to fines and penalties a week later.
At a trial de novo, Judge Kelly found defendant guilty anew and imposed
the same fines and penalties as the municipal court judge. Considering his
review of the municipal court transcript and viewing the surveillance video, the
judge stated:
. . . the police, I think, acted reasonably to direct the
defendant [to] pay the attendant, and get out of here.
Whether they were right or wrong, in that direction,
they certainly did that.
For whatever reason, [defendant], decided he
wasn't leaving. He stayed. He was directed to leave
again, and he did not. The police told him, look, if you
don't leave we're going to lock you up. We're going to
arrest you. He refused to leave, and began yelling at
the officers again, after they asked him to leave. And
they asked, as I said, if you refuse to leave, they told
him he'd be placed under arrest.
He attempted to exit the vehicle, but one of the
officers stopped him from getting out, and told
[defendant], just leave, but he did not.
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....
I do find that the evidence does prove, beyond a
reasonable doubt, that disorderly conduct due to
improper behavior, they caused tumultuous behavior,
and a public inconvenience and whatever, in a public
gas station during the daylight hours, and that he was
ordered to leave, and he did not, and he was told if he
didn't leave he would be arrested, and then he resisted
the arrest by not getting out of the car; they had to pull
him out. And that's really what happened. Anybody
who . . . reads the transcript and then looks at the
[video] you see that that's exactly what happened here.
On this appeal, defendant presents the following points of argument:
POINT I
THE LAW DIVISION ERRED IN FINDING
DEFENDANT GUILTY OF DISORDERLY
CONDUCT IN VIOLATION OF N.J.S.A. 2C:33-
2(A)(1).
(A) THE STATE DID NOT PROVE
THAT DEFENDANT CREATED OR
INTENDED TO CREATE "A PUBLIC
INCONVENIENCE, ANNOYANCE OR
ALARM OR THAT HE RECKLESSLY
CREATED A RISK THEREOF" OR BY
"ENGAGING IN FIGHTING OR
THREATENING OR IN VIOLENT OR
TUMULTUOUS BEHAVIOR."
(B) THE COURT ERRONEOUSLY
RELIED UPON VIDEOTAPE
EVIDENCE OF [THE] ALLEGED
CONDUCT WHICH OCCURRED
BEFORE THE ARRIVAL OF THE
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POLICE AND WHICH DID NOT FORM
THE BASIS OF PROBABLE CAUSE TO
ARREST DEFENDANT.
POINT II
THE LAW DIVISION ERRED IN FINDING
DEFENDANT GUILTY OF RESISTING ARREST IN
VIOLATION OF N.J.S.A. 2C:29-2 (A)(1).
Having considered these contentions in light of the record and the
applicable law, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the
reasons set forth in Judge Kelly's thorough oral opinion. 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)).
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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).
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 Judge Kelly's
thoughtful oral opinion. His analysis of the issues, including his deference to
the municipal court judge's detailed credibility findings, was comprehensive and
correct.
Affirmed.
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