STATE OF NEW JERSEY VS. DARIEN D. ANDERSON(14-12-2063, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0812-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OLEG SHTUTMAN,
Defendant-Appellant.
________________________________
Argued January 24, 2017 – Decided April 19, 2017
Before Judges Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Municipal Appeal No. 11-15.
Leonard S. Baker argued the cause for
appellant (Greenblatt, Pierce, Engle, Funt &
Flores, LLC, attorneys; Mr. Baker, of counsel
and on the brief).
Jennifer B. Paszkiewicz, Assistant
Prosecutor, argued the cause for respondent
(Robert D. Bernardi, Burlington County
Prosecutor, attorney; Ms. Paszkiewicz, of
counsel and on the brief).
PER CURIAM
Defendant Oleg Shtutman appeals from a September 24, 2015 Law
Division order, entered after a de novo hearing on a municipal
appeal, finding him guilty of disorderly conduct, N.J.S.A. 2C:33-
2(a)(1). We affirm.
I.
Defendant was arrested and charged with disorderly conduct,
N.J.S.A. 2C:33-2(a)(1). He pled not guilty and the matter was
tried in the Evesham Township Municipal Court. The evidence the
municipal court deemed credible showed that at around 6:00 p.m.
on June 22, 2014, Howard Some went to defendant's home in search
of Some's nine-year-old daughter's missing cell phone. Some did
not know defendant, but traced the phone to the area of defendant's
home with a mobile GPS tracking application.
Some first spoke with defendant's wife, who asked Some to
leave the property. Some insisted the phone was located on
defendant's property, and disregarded defendant's wife's request
to leave. Defendant became involved, rejected Some's request to
search the property, and told Some to leave.
Some left and called the police. Officers Christopher
DeFrancesco and Bryan Strockbine responded to defendant's home.
DeFrancesco spoke with defendant and detected an odor of alcohol,
observed that defendant slurred his speech and, according to the
officers, appeared to be intoxicated. Defendant appeared
"agitated," and shouted "in a very loud voice" that their
investigation was "a waste of taxpayers' money." Defendant
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nevertheless permitted the officers to search the property
surrounding defendant's home1 but said Some was not permitted on
the property. During this time, Some remained in the street in
front of defendant's home.
Some's GPS application showed the phone was in defendant's
front yard. The officers limited their search to that area but did
not find the phone. During the officers' brief search, defendant
yelled profanities and, as the search ended, moved toward the
street where the officers were located. Some was nearby. Defendant
was agitated and aggressive, yelling loudly, cursing, and said he
hoped Some's "cock falls off," that Some should buy his daughter
a new phone, and made sexually related comments concerning Some's
daughter.
Strockbine asked defendant to calm down, but defendant
refused, directing his conduct towards Strockbine and moving from
his front yard toward the middle of the street where Strockbine
stood. As defendant walked toward Strockbine he yelled "fuck you,
you fucking asshole" and other profanities, and moved his arms up
and down while pointing his raised middle fingers at Strockbine.
Defendant continued to yell profanities and flail his arms as he
1 The officers did not request a search of the interior of the
home.
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moved in Strockbine's direction, until he was within five inches
of Strockbine's face.
During the episode, Strockbine "noticed that neighbors were
coming out" of their houses and testified "it was obvious . . .
[defendant] was causing a disturbance." He observed a neighbor on
the other side of a lake walk out into her backyard, and other
"people coming [from] both sides of [defendant's] house."
Defendant was arrested and charged with disorderly conduct.
N.J.S.A. 2C:33-2(a)(1).
The municipal judge found defendant guilty of disorderly
conduct, concluding defendant's actions constituted "tumultuous
behavior" that caused a "public inconvenience." The judge imposed
a $500 fine and court costs.
Defendant appealed his conviction. The Law Division judge
conducted a trial de novo and found defendant guilty of disorderly
conduct under N.J.S.A. 2C:33-2(a)(1). The judge explained that
regardless of whether defendant's conduct was "tumultuous" within
the meaning of subsection (a)(1), it "certainly satisfied []
threatening" behavior under the same provision.
The trial judge found defendant "became and was extremely
belligerent . . . towards the police officer at his residence in
the front [yard], yelling foul language . . . [without] reason or
justification except to cause annoyance and alarm." The judge
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concluded that "when you put two fingers repeatedly in the face
of a cop in an extremely aggressive manner," causing neighbors to
come outside, "this is disorderly conduct . . . in the full sense
of the word."
On appeal defendant raises the following arguments:
I. THE [LAW DIVISION] ERRED WHEN IT FOUND
[DEFENDANT] GUILTY BECAUSE THE STATE DID NOT
PROVE BEYOND A REASONABLE DOUBT THAT HE
VIOLATED [N.J.S.A. 2C:3-2(a)(1)].
A. THERE WAS NO PROOF THAT
[DEFENDANT] CREATED A "PUBLIC
INCONVENIENCE, ANNOYANCE, OR ALARM
OR RECKLESSLY CREATED A RISK
THEREOF."
B. [DEFENDANT] DID NOT CREATE A RISK
OF PUBLIC INCONVENIENCE, ANNOYANCE
OR ALARM BY CREATING A HAZARDOUS OR
PHYSICALLY DANGEROUS CONDITION.
C. [DEFENDANT] DID NOT ENGAGE IN
FIGHTING OR THREATENING OR IN
VIOLENT OR TUMULTUOUS BEHAVIOR.
II.
In our review of the Law Division's decision on a municipal
appeal, "[w]e review the action of the Law Division, not the
municipal court." State v. Robertson, 438 N.J. Super. 47, 64 (App.
Div. 2014), certif. granted, 221 N.J. 287 (2015). We consider
"whether the findings made could reasonably have been reached on
sufficient credible evidence present in the record." State v.
Stas, 212 N.J. 37, 49 (2012) (quoting State v. Locurto, 157 N.J.
5 A-0812-15T2
463, 471 (1999)). "Unlike the Law Division, which conducts a trial
de novo on the record, Rule 3:32-8(a), we do not independently
assess the evidence." State v. Gibson, 429 N.J. Super. 456, 463
(App. Div. 2013) (quoting Locurto, supra, 157 N.J. at 471), rev'd
on other grounds, 219 N.J. 227 (2014).
Although we defer to the trial judge's findings of fact, "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." Stas, supra, 212 N.J. at 49; see also State
v. Handy, 206 N.J. 39, 45 (2011) (finding "appellate review of
legal determinations is plenary").
Defendant was charged with violating N.J.S.A. 2C:33-2(a)(1).2
The State was required to prove defendant, "with purpose to cause
public inconvenience, annoyance or alarm, or recklessly creating
a risk thereof[,] . . . [e]ngage[d] in fighting or threatening,
or in violent or tumultuous behavior." N.J.S.A. 2C:33-2(a)(1)
2The complaint alleged defendant created a hazardous or physically
dangerous condition, which is proscribed under N.J.S.A. 2C:33-
2(a)(2), but also detailed defendant's "belligerent" conduct and
alleged only a violation of N.J.S.A. 2C:33-2(a)(1). The record
shows the matter was prosecuted under N.J.S.A. 2C:33-2(a)(1), and
both parties agree defendant was found guilty of violating that
subsection in the municipal court and Law Division. We therefore
find it unnecessary to address defendant's argument there was
insufficient evidence that he created "a hazardous or physically
dangerous condition" to support a conviction under N.J.S.A. 2C:33-
2(a)(2).
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(emphasis added). "Public" is not defined in subsection (a), but
N.J.S.A. 2C:33—2(b) defines the term as follows: "affecting or
likely to affect persons in a place to which the public or a
substantial group has access; among the places included are
highways, . . . or any neighborhood." Although "[i]t is not clear
whether the Legislature intended [the subsection (b)] definition
to apply to [the] use of the word 'public' in subsection
[(a)], . . . for present purposes we assume a consistency of
meaning." State v. Stampone, 341 N.J. Super. 247, 254 (App. Div.
2001).
Defendant argues his conviction should be reversed because
he did not engage in fighting or threatening conduct, or violent
or tumultuous behavior, as proscribed under N.J.S.A. 2C:33-
2(a)(1). Defendant contends he merely used profane language and
argued with police officers, and his conduct was insufficient to
support his conviction. We disagree.
Defendant asserts the facts here are analogous to those in
Stampone, where we reversed a conviction for disorderly conduct.
Id. at 253-56. In Stampone, a police officer approached the
defendant's parked vehicle and asked for defendant's name. Id. at
249-50. The defendant refused to provide his name, but later
retrieved his license from the trunk of his car, returned to the
driver's seat, and closed the door. Ibid. The officer attempted
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to open the door and the defendant slammed it shut, nearly hitting
the officer's legs. Ibid. The officer pulled the defendant out of
the vehicle and the defendant cursed at the officer. Ibid.
We concluded the defendant's conduct did not constitute
threats, violence, or otherwise tumultuous conduct, relying in
part upon the dictionary definition of "tumult" which "speaks in
terms of a disorderly and violent movement, agitation or milling
about of a crowd, usually with great uproar and confusion of
voices, a noisy and turbulent popular uprising, a riot." Id. at
254-55 (citing Webster's Third New International Dictionary 2462
(1993)). We further noted there was no evidence "that passers-by
. . . notic[ed] any of [the defendant's actions] or congregat[ed]
or, indeed, that such persons were even present," and concluded
there was no capacity for the defendant's conduct to cause "public
inconvenience, public annoyance or public harm" under the statute.
Stampone, supra, 341 N.J. Super. at 255.
Stampone did not purport "to ascertain [tumult's]
definitional parameters," but found it "sufficient to find that
on the facts here presented there was no tumultuous conduct as a
matter of law." Id. at 255. Here, we must examine the definitions
further. When N.J.S.A. 2C:33-2 was enacted in 1978, "tumultuous"
was defined "as marked by tumult," "tending or disposed to cause
or excite a tumult," and "marked by violent or overwhelming
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turbulence or upheaval." Webster's New Collegiate Dictionary 1258
(1977). In turn, "tumult" was defined to include not only the
crowd-focused definitions cited in Stampone but also "violent
agitation of mind or feelings" and "a violent outburst." Ibid.;
see also United Prop. Owners Ass'n of Belmar v. Borough of Belmar,
343 N.J. Super. 1, 67 (App. Div.) (noting that "[t]umult is defined
as either 'uproar' or 'violent agitation of mind of feelings,'"
and that "[e]xcessive noise could qualify as an uproar or a violent
agitation") (quoting Webster's New American Dictionary 555
(Smithmark 1995))), certif. denied, 170 N.J. 390 (2001).
We are satisfied the circumstances supporting our decision
in Stampone are distinguishable. In Stampone, we were convinced
the defendant's actions in slamming the car door and refusing to
provide his name to the officer did not rise to the level of
tumultuous conduct under N.J.S.A. 2C:33-2(a)(1). Id. at 249-50,
254-55. Here, defendant appeared intoxicated, acted in an agitated
and aggressive manner, and engaged in a loud and profane-ridden
tirade that lasted for minutes, and which was accompanied by the
continuous flailing of his arms as he walked directly toward
Strockbine until he was within inches of Strockbine's face.
Defendant engaged in such conduct despite the officers' requests
that he calm down, and he created what his wife described as "total
chaos" in the street in front of their home. Under the totality
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of the circumstances presented, we are persuaded defendant's
conduct constituted "a violent outburst," Webster's New Collegiate
Dictionary, supra, at 1258, and exhibited a "violent agitation of
mind or feelings" creating "tumult," United Prop. Owners Ass'n of
Belmar, supra, 343 N.J. Super. at 67 (citation and internal
quotation marks omitted), and therefore constituted tumultuous
conduct under N.J.S.A. 2C:33-1(a)(1).
In Stampone, we also determined defendant's conduct had no
capacity to cause public inconvenience, annoyance, or harm because
"[t]here was no indication that passers-by were noticing any of
[the defendant's actions] or congregating or, indeed, that such
persons were even present." Stampone, supra, 341 N.J. Super. at
255. Here, however, defendant engaged in the conduct in the yard
and street in front of his home in a residential neighborhood,
which is a public place. N.J.S.A. 2C:33-2(b); Stampone, supra, 341
N.J. Super. at 254. The evidence showed there were members of the
public present during defendant's commission of the offense. Some
was in the street in front of defendant's home, defendant's
neighbor across the lake emerged into her backyard, and people
came from both sides of defendant's home toward the "total chaos"
defendant's conduct created. Thus, unlike Stampone, it was a
reasonable inference that defendant's conduct in fact caused
"public inconvenience, annoyance or alarm." N.J.S.A. 2C:33-2(a).
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In Stampone, we further determined that the evidence failed
to demonstrate the defendant acted purposely or recklessly.
Stampone, supra, 341 N.J. Super. at 255. N.J.S.A. 2C:33-2(a) does
not require that a defendant actually "cause public inconvenience,
annoyance or alarm," but only that defendant acted "with [the]
purpose to cause" it or "recklessly creat[ed] a risk thereof."
Ibid.
A person acts purposely "if it is his conscious object to
engage in conduct of that nature or to cause such a result."
N.J.S.A. 2C:2-2(b)(1). Reckless conduct requires a showing that a
person
consciously disregard[ed] a substantial and
unjustifiable risk that the material element
[of an offense] exist[ed] or [would] result
from his conduct. The risk must be of such a
nature and degree that, considering the nature
and purpose of the actor's conduct and the
circumstances known to him, its disregard
involve[d] a gross deviation from the standard
of conduct that a reasonable person would
observe in the actor's situation.
[N.J.S.A. 2C:2-2(b)(3).]
The evidence showed defendant knew he was in a public place,
the yard and street in front of his home. He disregarded the
officers' requests to calm down and his conduct ended only when
he was placed under arrest. Defendant disregarded a substantial
risk that his conduct would cause public inconvenience or alarm
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to Some who stood as a member of the public in the street, his
neighbors, and the individuals who came from both sides of his
home to the chaos he created in front of it. We are therefore
satisfied the evidence supports the court's determination
defendant acted with purpose to cause public inconvenience,
annoyance or alarm, or recklessly created a risk of causing it.
N.J.S.A. 2C:33-2(a).
Contrary to defendant's assertions, his conduct is wholly
dissimilar to the defendant's actions we found insufficient in
Stampone. The evidence supports the court's determination that
defendant committed the offense of disorderly conduct in violation
of N.J.S.A. 2C:33-2(a)(1).
Affirmed.
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