STATE OF NEW JERSEY VS. GILBERT FAHNBULLEH (W-2015-6386-0906, W-2015-6387-0906, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0960-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GILBERT FAHNBULLEH,
Defendant-Appellant.
________________________________
Submitted May 1, 2019 – Decided July 15, 2019
Before Judges Accurso and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket Nos. W-2015-6386-
0906 and W-2015-6387-0906.
Gilbert Fahnbulleh, appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Gilbert Fahnbulleh appeals his conviction for obstructing the
administration of law or other governmental function, N.J.S.A. 2C:29-1(a),
entered by the Law Division judge following his de novo review of defendant's
municipal court conviction. 1 In his self-authored merits brief, defendant argues:
POINT I
THIS COURT SHOULD FIND IN THE NEGATIVE
THAT APPELLANT'S ACTION(S) DID NOT
PURPOSELY OBSTRUCT[], IMPAIR[], OR
PERVERT[] THE ADMINISTRATION OF LAW OR
OTHER GOVERNMENTAL FUNCTION OR
PREVENT[] OR ATTEMPT[] TO PREVENT A
PUBLIC SERVANT FROM LAWFULLY
PERFORMING AN OFFICIAL FUNCTION "BY
MEANS OF FLIGHT, INTIMIDATION, FORCE,
VIOLENCE, OR PHYSICAL INTERFERENCE OR
OBTACLE, OR BY MEANS OF ANY
INDEPENDENTLY UNLAWFUL ACT." N.J.S.A.
2C:29-1A.
1
Defendant's notice of appeal and criminal case information statement list the
municipal court's December 9, 2016 order of conviction rather than the Law
Division's August 11, 2017 order denying his appeal. "It is clear that it is only
the orders designated in the notice of appeal that are subject to the appeal process
and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super.
455, 458 (App. Div. 2008). Although we are not required to do so, we will
address defendant's pro se appeal, particularly since the State did not object and
replied to defendant's arguments. See Ridge at Back Brook, LLC v. Klenert,
437 N.J. Super. 90, 97 n.3 (App. Div. 2014) (noting that we possess the
discretion to overlook "a party's failure to designate an order in the notice of
appeal" in certain circumstances); see also N. Jersey Neuro. Assoc. v. Clarendon
Nat'l Ins. Co., 401 N.J. Super. 186, 196 (App. Div. 2008) (holding an earlier
order not listed in the notice of appeal was nevertheless before the court because
the argument on the order appealed from continued to raise the earlier issue).
A-0960-17T4
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POINT II
THE STATUTE OF N.J.S.A. 2C:19-1A STATES ["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. IN ORDER
TO FIND THE DEFENDANT GUILTY OF THIS
OFFENSE, THE STATE MUST PROVIDE EACH OF
THE FOLLOWING ELEMENTS BEYOND A
REASONABLE DOUBT: (1) THAT THE
DEFENDANT (A) COMMITTED AN ACT OF
FLIGHT, INTIMIDATION, FORCE, VIOLENCE, OR
PHYSICAL INTERFERENCE OR OBSTACLE"].
POINT III
GIVEN THE FACTS, APPELLANT DID NOT
COMMIT A VIOLATION OF OBSTRUCION "BY
MEANS OF FLIGHT, INTIMIDATION, FORCE,
VIOLENCE, OR PHYSICAL INTERFERENCE OR
OBSTACLE, OR BY MEANS OF ANY
INDEPENDENTLY UNLAWFUL ACT" AS
STIPULATED IN THE ELEMENTS OF THE
STATUTE N.J.S.A. 2C:29-1A.
Our review of the record reveals substantial evidence which proved each
element of the offense; we thus affirm defendant's conviction. We are, however,
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3
constrained to remand this matter because the Law Division judge did not
impose sentence and enter a judgment as required by Rule 3:23-8(e).2
In pertinent part, N.J.S.A. 2C:29-1(a) provides:
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.
The State was, therefore, required to prove: (1) defendant committed "an act of
flight, intimidation, force, violence, or physical interference or obstacle [or] an
unlawful act[.] [I]n other words, an act that is, without regard to its purpose to
obstruct justice, already declared illegal"; (2) the defendant's purpose for the
unlawful act was to obstruct, impair or pervert the administration of law or to
prevent a public servant from performing an lawful function; and (3) defendant
attempted to, or did, "obstruct, impair, or pervert the administration of law or
the official governmental function . . . ." Model Jury Charges (Criminal),
2
Although the order entered by the Law Division judge states, "Defendant's
Municipal Appeal is DENIED," we perceive from our review of the judge's
entire oral decision that he conducted a de novo review in accordance with Rule
3:23-8(a)(2). The judge, however, did not sentence defendant or enter the
required judgment.
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"Obstructing Administration of Law or Other Governmental Function (N.J.S.A.
2C:29-1)" (approved Oct. 23, 2000).
The Law Division judge found the State met its burden as to each of those
elements based on the testimony of the officer who conducted a motor vehicle
stop after he viewed an expired registration sticker on defendant's vehicle. Th e
judge cited verbatim portions of that testimony, found credible by the judge who
deferred to the municipal court judge's credibility findings. See State v. Locurto,
157 N.J. 463, 474 (1999).
The Law Division judge found the officer and his partner were in full
uniform when they exited their marked police vehicle, approached defendant's
vehicle and requested his driver's license, registration and insurance card. The
officer said defendant "stated he did not have to give it to me and refused to give
it to me." The officer asked defendant for those credentials "upwards of ten
times" and advised defendant he was subject to arrest if he refused to give that
information to the officer. Defendant was arrested after he "remained obstinate
in his refusals" to produce his driving credentials "that would have aided the
policing in determining the identity of [defendant]." Defendant's failure to
produce his credentials necessitated the police to arrest him under the name,
"John Doe." Although a fingerprint search later identified defendant, the State
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was unable to locate and produce the summonses on the day of trial because all
summonses issued that day were under the common pseudonym.
Our function as a reviewing court is to determine whether the findings of
the Law Division judge "could reasonably have been reached on sufficient
credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162
(1964). If we determine that the findings and conclusions of the judge meet that
criterion, our "task is complete" and we "should not disturb the result" even if
we "might have reached a different conclusion . . . ." Ibid.; see also State v.
Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). Just as the Law Division
judge did when conducting his de novo review, we "defer to [the] trial court['s]
credibility findings that are often influenced by matters[,] such as observations
of the character and demeanor of witnesses and common human experience[,]
. . . not transmitted by the record." Locurto, 157 N.J. at 474. We reverse if we
find the "judge went so wide of the mark, a mistake must have been made." Id.
at 471 (quoting Johnson, 42 N.J. at 162). That is not the case here.
The Law Division judge determined defendant committed an unlawful act
by violating N.J.S.A. 39:3-29 which requires a driver of a motor vehicle to
"exhibit his [or her] driver’s license and an insurance identification card, and
. . . shall also exhibit the registration certificate, when requested so to do by a
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police officer . . . while in the performance of the duties of his [or her] office
. . . ." When a "defendant fail[s] to produce his [or her] driver's license and a
registration certificate, the officers [are] empowered to arrest him [or her]."
State v. Gray, 59 N.J. 563, 568 (1971). Defendant's refusal to produce his
license, registration and insurance card was an unlawful act, State v. Perlstein,
206 N.J. Super. 246, 255 (App. Div. 1986), that prevented the police from
identifying him, verifying whether the vehicle registration was current, issuing
any summons to an identified defendant and requiring a fingerprint investigation
to learn defendant's identity. Defendant's "obstinate" refusal, "upwards" of ten
times, proves that his "act of affirmative interference," State v. Fede, 237 N.J.
138, 149 (2019), was purposeful,3 N.J.S.A. 2C:2-2(b)(1).
3
"Purposely" is defined by statute:
A person acts purposely with respect to the nature of
his conduct or a result thereof if it is his conscious
object to engage in conduct of that nature or to cause
such a result. A person acts purposely with respect to
attendant circumstances if he is aware of the existence
of such circumstances or he believes or hopes that they
exist. "With purpose," "designed," "with design" or
equivalent terms have the same meaning.
[N.J.S.A. 2C:2-2(b)(1).]
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The substantial credible evidence in the record supported the Law
Division judge's findings and proved each of the elements of N.J.S.A. 2C:29-
1(a). We discern no reason to disturb defendant's conviction for obstruction.
We determine the balance of defendant's arguments are without sufficient
merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).
Affirmed but remanded to the Law Division for imposition of sentence
and entry of a judgment in compliance with the procedures set forth in Rule
3:23-8(e). We do not retain jurisdiction.
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