STATE OF NEW JERSEY VS. WADIM SAKIEWICZÂ (15-06-0265, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-2663-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WADIM SAKIEWICZ,
Defendant-Appellant.
_____________________________________________
Submitted July 6, 2017 – Decided July 18, 2017
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Indictment No.
15-06-0265.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jack L. Weinberg, Designated
Counsel, on the brief).
Francis A. Koch, Sussex County Prosecutor,
attorney for respondent (Shaina Brenner,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following a bench trial, defendant was found guilty of simple
assault, contrary to N.J.S.A. 2C:12-1(a)(1), a disorderly persons
offense. The court sentenced defendant to forty-five days in the
county jail. Defendant appeals from the judgment of conviction
dated January 22, 2016. We affirm.
I.
A Sussex County grand jury charged defendant with third-
degree terroristic threats, N.J.S.A. 2C:12-3(a) (count one);
third-degree aggravated assault upon a law enforcement officer,
N.J.S.A. 2C:12-1(b)(5)(a) (count two); and fourth-degree attempted
aggravated assault upon a person engaged in the performance of
emergency first-aid, N.J.S.A. 2C:12-1(b)(5)(c) (count three). In
addition, a summons was issued charging defendant with simple
assault, N.J.S.A. 2C:12-1(a)(1).
In August 2015, while the jury was being selected, defendant
pled guilty to count two of the indictment, which was amended to
simple assault, N.J.S.A. 2C:12-1(a)(1), a disorderly persons
offense. The State agreed to recommend one year of non-custodial
probation and to dismiss the remaining charges. In October 2015,
defendant filed a motion to withdraw the plea. On November 19,
2015, the court granted the motion.
Thereafter, the parties agreed to proceed to trial on the
simple assault charge, and the State agreed it would not pursue
the other charges. The matter was tried before a judge, sitting
without a jury.
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At the trial, Corporal Frank Schomp of the Sparta Township
Police Department (STPD) testified that on September 1, 2012, he
was on patrol when he encountered defendant at defendant's
residence. Schomp took defendant into custody and placed him in
the STPD's holding cell. One of defendant's hands was handcuffed
to the processing bench. According to Schomp, defendant was upset
because he had been arrested, and he was speaking erratically.
Schomp left the holding cell but later came back with another
officer. Schomp observed defendant on the floor. Defendant was
still handcuffed to the processing bench and appeared to be
unconscious. Schomp said he shoved defendant with his foot. The
other officer performed a "sternum rub," during which the knuckles
are pressed against an individual's sternum. According to Schomp,
a "sternum rub" is "a fairly painful stimuli," which is used "to
awaken unconscious persons."
Defendant awoke and began screaming. He said he was diabetic
and wanted medical attention. The officers called for medical
assistance. Defendant remained on the floor until the emergency
medical technicians (EMTs) arrived. Defendant then sat up on his
own. Schomp noted that there was an overhead video camera in the
holding cell, which faced the processing bench. The video camera
records video but not sound. It was operating at the time. Schomp
said defendant had been spitting the whole time he was in the
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lockup, and they gave him a garbage can in which to spit "so there
[would] not [be] a mess."
The video recording was played. The judge noted that on the
videotape, defendant is shown falling on his face. Schomp enters
the room and nudges defendant with his right leg. The other officer
was standing over defendant. The judge could not determine whether
defendant was speaking with the officers, but he noted that
defendant's foot began to move. Defendant eventually got up on his
own and appeared to be speaking with an officer while Schomp left
the room.
Sergeant Joseph Pensado of the STPD also testified. Pensado
said that on the afternoon of September 1, 2012, he was on duty
at the police station. The patrol sergeant told Pensado to enter
the holding cell with the EMTs to check on defendant. Three EMTs
were present.
Pensado observed defendant's interaction with one of the
EMTs. According to Pensado, defendant was being "completely
uncooperative." Defendant engaged in "tumultuous behavior" toward
one of the EMTs. Pensado said that defendant was antagonistic and
refused to be treated. Pensado stood near defendant, as the EMT
approached him.
Pensado testified that defendant was dissatisfied with the
treatment, and the EMT was unable to get near defendant. The EMT
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asked defendant some basic questions, but defendant would not
answer without arguing. The EMT approached defendant to take his
blood pressure, and Pensado stepped away from the processing bench.
Defendant continued to be uncooperative. He was yelling and
screaming at the EMT.
Defendant moved closer to the EMT and raised his hand in a
threatening manner. Pensado reacted. He approached the processing
bench and positioned himself between defendant and the EMT. Pensado
placed his forearm against defendant's chest and pushed him away.
Defendant began to fight.
Pensado said he attempted to gain control of defendant, but
defendant resisted. Pensado testified that defendant was fighting
and he was aggressive. Defendant did not make any statements.
Pensado said defendant was "yelling and screaming." At some point
during the encounter, defendant kneed Pensado in his testicles,
which caused Pensado pain.
Pensado testified that he was in uniform at the time, and it
was clear to defendant that he was a law enforcement officer.
Eventually, Pensado was able to restrain defendant, with
assistance from the EMT and another officer. They handcuffed both
of defendant's hands to the processing bench. Defendant continued
"name calling" and "his tumultuous behavior." Pensado tried to
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calm defendant. He unsuccessfully attempted to get defendant to
comply with his orders.
The videotape was played again. Pensado identified the
persons shown on the recording. He said the videotape showed the
EMT trying to evaluate defendant, and the EMT's attempt to take
defendant's blood pressure. Pensado noted that the videotape
showed him restraining defendant from making further contact with
the EMT and defendant fighting. The videotape also showed defendant
yelling at the EMT and the struggle to handcuff defendant.
Defendant testified that on the morning of September 1, 2012,
he was suffering from jet lag. He was sixty-six years old at the
time. He was tired, had not eaten breakfast, and his blood sugar
level was very low. He stated that, while he was sitting in the
holding cell, he felt very weak. He was shivering and lost
consciousness. He denied that he pretended to lose consciousness.
At some point, defendant regained consciousness. He recalled
that the officers kicked him. He said he was upset when the EMTs
entered the cell. He expected the EMTs to check his blood sugar
level, but instead they started to check his blood pressure.
Defendant claimed that one of the EMTs "virtually" put a
trashcan over his head, and Pensado struck him against a wall.
He said he might have raised his voice. He said the EMT had been
abusive and treated him like a dog by putting the trashcan in his
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face. Defendant denied threatening the EMT and said he did not
knee Pensado in the testicles. He testified that he believed the
EMTs were part of "a gang" with the officers to assault him. The
videotape was played, and defendant provided his interpretation
of what it depicted.
On cross-examination, defendant denied that he requested the
trashcan so that he could spit in it. He was shown the videotape
and asked to point out when an EMT abused him. Defendant said the
abuse consisted of treating him "like an animal." Defendant also
stated that the EMT abused him by placing the trashcan over his
head. He said the EMTs were part of "a gang" to wrongly accuse and
assault him.
A registered nurse at the Sussex County jail testified that
she examined defendant on September 5, 2012. She stated that she
observed swelling and bruising on defendant's posterior left
tricep.
II.
The attorneys then provided closing statements. Defendant's
attorney argued that the officers' testimony was not credible. She
stated that Schomp had claimed he nudged defendant with his foot,
but counsel asserted that Schomp kicked defendant while he was on
the floor. Counsel denied that defendant was pretending to be
unconscious. She said he had been in the holding cell for two-and-
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one-half hours, without food, drink, or shoes when he passed out.
Counsel said the officers waited four-and-one-half minutes before
coming to defendant's aid.
Defendant's attorney further argued that defendant did not
have the "mindset" to assault the police officers. She stated that
defendant did not take any action which warranted Pensado to come
over and take control of the situation. Defense counsel said
Pensado slammed defendant against the wall and threw him down on
the bench.
Counsel stated that the videotape did not show defendant
kneeing Pensado in the testicles. She asserted that it did not
show Pensado reacting to such an assault. She said the evidence
does not rise to the level of a simple assault.
The assistant prosecutor responded by stating that defendant
had acted out against the EMT, who had been providing assistance
to him. The assistant prosecutor stated that defendant had been
argumentative and confrontational. Defendant did not cooperate
with the medical treatment, and he "clearly expressed his disdain"
for the officers and the EMTs. Pensado tried to calm him down, but
defendant struck Pensado and caused him pain.
The assistant prosecutor argued that the evidence established
that defendant had committed a simple assault upon the officer.
The prosecutor noted that the videotape showed defendant resisting
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as two officers and the EMTs attempted to subdue him. Defendant
tried to resist Pensado's control by moving his arms and legs. The
prosecutor said Pensado's legs were straddling defendant's legs.
They were "entangled" and "intertwined." Defendant disregarded the
risk of causing injury to the officer. He continued to "flail
about." Defendant's movements injured the officer.
The judge then placed his decision on the record. The judge
found that the officers were performing their lawful duties in
full uniform when they came into contact with defendant. On the
videotape, defendant appeared to be "in a distressed state." He
was handcuffed to the processing bench, and he was speaking
erratically. Defendant was antagonistic. He was upset because he
had been arrested.
The judge rejected defendant's claim that the officers
mistreated him. The judge stated that he did not believe
defendant's testimony. The judge said he believed what he had seen
on the videotape, and it showed defendant engaging in tumultuous
behavior.
The judge found that defendant "clearly kneed" Pensado in the
groin area. He said that the officer did not fall down in
excruciating pain, but this did not mean he had not kneed the
officer in the groin area. The judge stated, "I saw it happen,"
and the officer said it happened. The judge said that he believed
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the officer's testimony. The judge found defendant guilty "as
charged."
Later, another judge sentenced defendant to forty-five days
in the county jail, with six days of jail credit for time
previously served. The judge also imposed appropriate penalties.
The judge entered a judgment of conviction dated January 22, 2016.
This appeal followed. On appeal, defendant argues:
THE STATE FAILED TO MEET ITS BURDEN OF PROOF
THAT THE DEFENDANT COMMITTED A SIMPLE ASSAULT
UPON SGT. PENSADO. THE COURT'S FINDINGS CANNOT
BE REASONABLY REACHED ON SUFFICIENTLY CREDIBLE
EVIDENCE PRESENT IN THE RECORD AS A WHOLE. THE
COURT'S FINDINGS ARE SO CLEARLY MISTAKEN THAT
THE INTERESTS OF JUSTICE DEMAND INTERVENTION
AND CORRECTION.
III.
In an appeal from the judgment of conviction following a
bench trial, we must determine whether the judge's findings "'could
reasonably have been reached on sufficient credible evidence
present in the record,' given the burden of proof, which is proof
beyond a reasonable doubt." State v. Castagna, 387 N.J. Super.
598, 604 (App. Div. 2006) (quoting State v. Johnson, 42 N.J. 146,
161-62 (1964)).
We must defer to the trial court's findings if they were
"substantially influenced by [the judge's] opportunity to hear and
see the witnesses and to have the 'feel' of the case, which a
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reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. We
may not set aside the judge's factual findings unless they are
clearly mistaken "and so plainly unwarranted that the interests
of justice demand intervention and correction." Id. at 162.
Here, defendant was charged with simple assault under
N.J.S.A. 2C:12-1(a), which provides that a person is guilty of
assault if he "[a]ttempts to cause or purposely, knowingly or
recklessly causes bodily injury to another." Thus, the State was
required to prove beyond a reasonable doubt that defendant
attempted to cause or caused bodily injury to Pensado, and that
he acted purposely, knowingly or recklessly in doing so.
"Bodily injury" is defined as "physical pain, illness or any
impairment of the physical condition." N.J.S.A. 2C:11-1(a).
Furthermore, a person acts "recklessly" when he or she
consciously disregards a substantial and
unjustifiable risk that the material element
exists or will 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 involves 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).]
On appeal, defendant argues that the trial judge's finding
that he committed a simple assault is not supported by sufficient
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credible evidence. He contends the judge's credibility findings
are not supported by the record. He argues that the videotape
shows the officers wrongly viewed him as person who was completely
out of control. He contends the videotape does not support the
officers' assertion that he spit on the floor of the holding cell.
According to defendant, this shows that the officers' credibility
is "suspect."
Defendant further argues that the State failed to establish
that he acted purposely, knowingly or recklessly. He contends
Pensado "aggressively moved in on" him when the EMT was attempting
to take his blood pressure. He maintains the videotape shows his
actions were in direct response to the officers' manipulation of
his body while he was handcuffed to the bench. According to
defendant, the videotape does not show that he kneed Pensado in
the groin purposely, intentionally or recklessly.
Defendant claims that, at the time of the alleged assault,
the officers were manhandling and pushing him around. He admits
it is "possible" his knee came into contact with Pensado, but this
was based on his movements and not on any purposeful, intentional
or reckless action on this part. He claims that during the
encounter, he had many opportunities to strike the officer.
Defendant asserts that if he was in an aggressive mood, he could
have spit at the officer's face "at very close range." He also
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states that the videotape shows that his knee was between Pensado's
legs a second time, but he did not strike the officer.
We are convinced that defendant's arguments are entirely
without merit. The record fully supports the trial judge's factual
finding that defendant assaulted Pensado by kneeing him in the
groin. Indeed, as noted, defendant admits that his knee may have
come into contact with the officer's groin area.
The testimony of the officers, which the judge found credible,
established that defendant had been argumentative. He was angry
that he had been arrested and dissatisfied with the EMTs attempt
to evaluate him. Defendant resisted the officer's attempt to
control the situation. The evidence was more than sufficient to
support the judge's finding that defendant assaulted Pensado
purposely, knowingly or recklessly.
Affirmed.
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