RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1017-22
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LUCIA MANZANO,
Defendant-Respondent. _________________________
Submitted November 9, 2023 – Decided November 29, 2023
Before Judges Vernoia and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-0101-23.
John P. McDonald, Somerset County Prosecutor, attorney for appellant (Ryan A. Quiñones, Assistant Prosecutor, of counsel and on the brief).
DeFilippo & DeFilippo, LLC, attorneys for respondent (Angel M. DeFilippo, on the brief).
PER CURIAM The State appeals from an order dismissing its prosecution of defendant
Lucia Manzano on contempt and resisting arrest disorderly persons offenses
based on a finding defendant's actions constituted de minimis infractions under
N.J.S.A. 2C:2-11. Having reviewed the parties' arguments, the record, and the
applicable legal principles, we find the court abused its discretion by dismissing
the prosecution and reverse.
I.
N.J.S.A. 2C:2-11 permits an assignment judge to dismiss a prosecution
under certain specified circumstances. In its consideration of a dismissal motion
under N.J.S.A. 2C:2-11, a court must "assume[] that the conduct charged
actually occurred[,]" accept as true the State's allegations, and view the facts in
the light most favorable to the State. State v. Zarrilli, 216 N.J. Super. 231, 236
(Law Div. 1987); see also State v. Evans, 340 N.J. Super. 244, 249 (App. Div.
2001). We therefore rely on, and accept as true, the following facts gleaned from
the State's allegations in the complaint-warrant filed against defendant, an
affidavit of probable cause, and police reports provided to the motion court.
At 3:04 a.m. on July 2, 2022, a municipal court judge entered a temporary
restraining order (TRO) against defendant under the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on a claim defendant
A-1017-22 2 committed the predicate act of assault by punching the individual (the plaintiff)
who sought the TRO, and causing the plaintiff physical injury. The TRO barred
defendant from returning to the scene of the violence—the plaintiff's residence
he "shared" with defendant—and from having "any oral, written, personal,
electronic, or other form of contact or communication with" the plaintiff.
(Emphasis in original). The TRO permitted defendant to obtain personal
belongings from the residence, but only with a police escort.
The TRO had been entered following defendant's arrest on charges arising
out of the alleged domestic violence incident. The police served defendant with
the TRO, and she was then released from the custody attendant to her arrest.
Within an hour of the issuance of the TRO, at 3:56 a.m., the plaintiff
reported to the police defendant had violated the TRO during the short time
following her release from custody by "calling him about seventeen times and
texting him." The plaintiff also reported defendant was at the residence. Two
officers went to the residence but did not locate defendant there. The plaintiff
informed the officers "he was in fear of his life," and the officers searched the
building complex where the residence was located but did not find defendant
and left.
A-1017-22 3 Twenty minutes later, the plaintiff contacted police headquarters and
advised that defendant was in the residence. The plaintiff advised he was
"downstairs," and he could see defendant "on the balcony of" the residence. The
officers returned to the residence but did not locate defendant.
As the officers left, they observed defendant's vehicle running "in the
parking lot and [they] heard a female voice yelling." The officers approached
the vehicle and observed defendant "sitting in the car."
One of the officers asked defendant to get out of car because she was under
arrest for violating the TRO. In response, defendant "kept saying she was not
going to exit the vehicle." After multiple requests to defendant to get out of the
car, one of the officers removed her from the vehicle. As the officers then
attempted to arrest defendant and put her in handcuffs, defendant resisted by
"flailing her arms and not complying with" the officers' orders.
The officers were subsequently successful in their efforts to handcuff
defendant, and they transported her to police headquarters where she was
charged with the disorderly persons offenses of contempt, N.J.S.A. 2C:29-
9(b)(2), and resisting arrest, N.J.S.A. 2C:29-2(a)(1).
In the complaint-warrant charging the offenses, the State alleged
defendant committed the offense of contempt by communicating by phone and
A-1017-22 4 via text message with the plaintiff in violation of the TRO. In an affidavit of
probable cause supporting defendant's arrest, one of the officers stated
"defendant was believed to have gone into" the plaintiff's residence in violation
of the TRO.
The complaint-warrant further alleged defendant resisted arrest "by,
refusing to obey the officer's orders to exit [her] vehicle [and] place her hands
behind her back as directed," and by "flailing her body in an attempt to resist"
the officer's efforts to place her in handcuffs. The affidavit of probable cause
similarly asserted defendant had refused orders to exit her vehicle and "flail[ed]
her body in an attempt to break the officer's physical contact [with her] during
the arrest."
Defendant's Motion
Defendant moved to dismiss the charges as de minimis infractions under
N.J.S.A. 2C:2-11. At the hearing on the motion, defendant offered a different
version of the events leading to her arrest that was apparently, at least in part,
supported by the court's review of the officers' body-cam recordings of
defendant's arrest. 1 The court also considered an unsworn letter from the
1 The body-worn recordings were not admitted in evidence or marked as exhibits at the hearing on defendant's motion and are not part of the record on appeal.
A-1017-22 5 plaintiff, dated more than two weeks after the July 2, 2022 incident, in which he
stated: defendant is the "love of [his] life"; he does "not feel [defendant] is a
threat to [his] safety"; he felt "terrible about getting the courts involved"; he
had been "over-emotional and vindictive" when making the calls to the police
that led to defendant's arrest; and he requested the charges against defendant "be
dropped."
Defendant's counsel argued the charges against defendant should be
dismissed as de minimis under N.J.S.A. 2C:2-11 because the plaintiff had
requested dismissal, the plaintiff admitted to calling the police in a vindictive
manner, and the officers' body-cam recordings showed defendant's refusal to
follow the police directives to exit the vehicle and cooperate while being
handcuffed was based on her concern about what would happen to the small dog
she had with her at the time. 2 Counsel also argued there was no evidence
We summarize the court's findings concerning what was depicted on the recordings based on its review of them. We note that in its brief on appeal, the State does not dispute the court's findings. 2 In its decision on defendant's motion, the court found that during the police interaction with defendant in the parking lot, defendant said she went to the residence and "that her cousin got her small dog, gave it to her, and she was on her way home," when the police intervened to place her under arrest. The record does not reveal the location from which the cousin purportedly obtained the dog, but the court found the residence at issue was "shared" by plaintiff and
A-1017-22 6 defendant entered the plaintiff's residence in violation of the TRO and the TRO
did not prevent defendant from "getting her car in the parking lot" of the
plaintiff's apartment building. Counsel further asserted defendant may have
acted "inappropriately" during her interactions with the police, but there was
insufficient evidence she committed either of the charged offenses.
Relying on the body-cam recordings, the State argued defendant clearly
resisted arrest, telling the officers, "I am not going to the police station" and
making numerous requests that the officers "shoot" her as they attempted to
place her under arrest both before and after the dog was taken from her. The
State further noted the complaint-warrant's narrative and the officers' reports
explained that the plaintiff had stated defendant made "more than a dozen calls"
to him following entry of the TRO, and the court was bound "to accept the
conduct" as alleged by the State in determining defendant's dismissal motion
under N.J.S.A. 2C:2-11.
defendant. The record does not indicate whether the officers observed the alleged cousin at or near the residence during the short time that elapsed from the issuance of the TRO at 3:04 a.m. and the time of defendant's arrest or how the cousin obtained the dog from the residence or gained entry into the residence to do so. We note, however, the TRO barred defendant from retrieving personal property from the residence without a police escort. A-1017-22 7 The court granted defendant's motion in a decision from the bench. The
court found defendant had been served with the TRO, which barred her from
returning to the residence she "shared" with the plaintiff. The court further
found the officers returned to the residence twice in response to reports made by
the plaintiff that defendant was at, and then in, the residence. The court
explained the officers saw defendant in the "parking garage of the residence,"
and defendant denied she had been in the residence, but stated she went there
and "her cousin got her small dog, and gave it to her."
The court further found the officers directed defendant to "get out of the
car," but [s]he objected saying she "didn't know what to do with the dog."
According to the court, the officers asked defendant to either place the dog on
the ground in the garage or leave the dog in the car, but defendant "objected to
both of those." The court found the officers then "grabbed defendant" and "took
her from the car," and an officer took the dog and handed it to the plaintiff. The
court did not make any findings contrary to the State's allegations that defendant
flailed her arms and body as a means of resisting the officers' efforts to handcuff
her and effectuate an arrest.
The court further rejected the State's allegation that defendant called the
plaintiff seventeen times after she had been served with the TRO that barred her
A-1017-22 8 from having any contact with him. Although the complaint-warrant and police
reports stated the plaintiff had reported that defendant made seventeen calls and
texts to him following service of the TRO, the court found there was no support
in the record that those calls were made. The court further noted the plaintiff
had dismissed the TRO and requested dismissal of the charges against defendant.
The court also explained defendant asserted the "underlying
facts . . . suggest no TRO violation or resisting arrest occurred," and defendant's
actions in response to the officers' directives were reasonable because she
needed time to arrange for the dog's care. The court further found no evidence
defendant had entered the plaintiff's residence.
The court determined "the underlying facts" support dismissal of the
charges as de minimis infractions under N.J.S.A. 2C:2-11(b) and (c). The court
concluded "there is no evidence defendant actually caused or threatened the
harm or evil sought to be prevented by the law in defining the offense[s,] and
the actions were too trivial to warrant condemnation or conviction." See
N.J.S.A. 2C:2-11(b). The court also granted defendant's motion based on a
separate finding "the case presents extenuating circumstances that cannot be
reasonably regarded as [envisaged] by the Legislature," see N.J.S.A. 2C:2-11(c),
A-1017-22 9 but the court did not identify or make any findings as to the extenuating
circumstances on which it relied.
The court entered an order granting defendant's motion and dismissing the
charges. The State appealed the court's order as of right. See ibid.
II.
The determination of a motion to dismiss charges as de minimis under
N.J.S.A. 2C:2-11 rests in the assignment judge's discretion. Evans, 340 N.J.
Super. at 248. We therefore review the court's order granting defendant's
dismissal motion on de minimis grounds for an abuse of discretion. Ibid.
We "may find an abuse of discretion when a decision 'rest[s] on an
impermissible basis' or was 'based upon a consideration of irrelevant or
inappropriate factors.'" State v. S.N., 231 N.J. 497, 515 (2018) (alteration in
original) (quoting State v. C.W., 449 N.J. Super. 231, 255 (App. Div. 2017)). We
"can also discern an abuse of discretion when the trial court fails to take into
consideration all relevant factors and when its decision reflects a clear erro r in
judgment." Ibid. (quoting C.W., 449 N.J. Super. at 255). Where a "trial court
renders a decision based upon a misconception of the law, that decision is not
entitled to any particular deference and consequently will be reviewed de novo."
Ibid. (quoting C.W., 449 N.J. Super. at 255).
A-1017-22 10 N.J.S.A. 2C:2-11 authorizes an assignment judge to dismiss a prosecution
on any one of three grounds after considering "the nature of the conduct charged
to constitute an offense and the nature of the attendant circumstances." More
particularly, the statute allows an assignment judge to dismiss a prosecution
based on a determination the defendant's conduct:
a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
b. Did not actually cause or threaten harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss the prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.
[N.J.S.A. 2C:2-11.]
The statute, with modifications, was modeled after § 2.12 of the Model
Penal Code (MPC).3 State v. Hoffman, 149 N.J. 564, 587 (1997) (citing 1 The
3 MPC § 2.12 provides as follows:
A-1017-22 11 New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision
Commission, cmt. to § 2C:2-11, at 23 (1971)). "The drafters of
the MPC summarized the historical basis for that section as a 'kind of
unarticulated authority to mitigate the general provisions of the criminal law to
prevent absurd applications.'" Ibid. (emphasis in original) (quoting 2 The New
Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision
Commission, cmt. to § 2C:2-11, at 74 (1971)). Indeed, the Court has noted there
The Court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:
(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; or
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense.
The Court shall not dismiss a prosecution under Subsection (3) of this Section without filing a written statement of its reasons.
A-1017-22 12 is no hesitancy in our jurisprudence "to terminate a potential prosecution when
the charge has been trivial or the prosecution would have been absurd." Ibid.
Here, the assignment judge granted defendant's dismissal motion, finding
grounds to do so under subsections (b) and (c) of N.J.S.A. 2C:2-11. In making
its decision, the court did not apply the correct legal standard. Contrary to the
well-established principles governing the disposition of a motion under N.J.S.A.
2C:2-11, the court neither accepted the State's allegations as true nor considered
the facts in the light most favorable to the State. Evans, 340 N.J. Super. at 251;
Zarrilli, 216 N.J. Super. at 236. Rather, the court accepted defendant's version
of the events, viewed the alleged facts supporting defendant's version in a light
most favorable to her, and suggested defendant's conduct constituted de minimis
infractions because defendant did not commit any infractions at all.
The court found there was no evidence defendant called the plaintiff
following her receipt of the TRO, but in the complaint-warrant and affidavit of
probable cause, the State alleged the plaintiff reported defendant called him
seventeen times following her receipt of the TRO. Similarly, the court did not
accept as true that the plaintiff reported to officers he saw defendant at, and in,
A-1017-22 13 the residence following her receipt of the TRO.4 Moreover, the court did not
accept as true the State's evidence defendant defiantly refused to heed to the
officers' orders that she exit her vehicle after being informed she was arrested ,
or that she physically resisted arrest by flailing her arms and body to prevent the
officers from placing her in handcuffs. 5
We conclude the court abused its discretion in granting defendant's motion
because it did not apply the correct legal standard in its assessment of the facts
pertinent to the determination of a dismissal motion under N.J.S.A. 2C:2-11.
See S.N., 231 N.J. at 515. Based on our de novo review of the record, see ibid.,
we are also persuaded that application of the correct legal standard to the State's
4 In support of its decision, the court relied in part on the plaintiff's unsworn letter, written more than two weeks after the incident, in which he expresses regret at calling the police on July 2, 2022. However, the letter does not contradict the complaint-warrant and police reports detailing his statements to the police on July 2, 2022, that defendant called and texted him seventeen times and entered the residence twice shortly after she was served with the TRO. That is, although the plaintiff may have regretted calling the police, his letter does not state he falsely informed the police about defendant's calls and texts to him, or her presence at and in the residence, following entry of the TRO. 5 The court's bench decision dismissing the resisting arrest charge as a de minimis infraction makes no mention of the State's allegation, which the court was required to accept as true, ibid., that defendant physically resisted being placed in handcuffs before and after the dog was taken from her. A-1017-22 14 version of the pertinent facts requires reversal of the court's order granting the
motion.
As noted, the court granted defendant's motion under subsections (b) and
(c) of N.J.S.A. 2C:2-11. Under subsection (b), a court does not determine
"whether the defendant is innocent or guilty of the offense[s] charged." Evans,
340 N.J. Super. at 249. Instead, the court must decide whether the conduct
charged "'actually cause[d] or threaten[ed] the harm sought to be prevented,'
or . . . was . . . 'too trivial to warrant the condemnation of conviction.'" Ibid.
(quoting N.J.S.A. 2C:2-11(b)). Again, in making those determinations, "the
judge must assume 'that the conduct charged actually occurred.'" Ibid. (quoting
State v. Cabana, 315 N.J. Super. 84, 86 (Law Div. 1997), aff'd, 318 N.J. Super.
259 (App. Div. 1999)).
The State charged defendant under N.J.S.A. 2C:29-9(b)(1) with contempt
of the TRO entered pursuant to the PDVA. A defendant is guilty of contempt if
the defendant "purposely or knowingly violates any provision in an order
entered under the provisions of the" PDVA. N.J.S.A. 2C:29-9(b)(1). To
establish the elements of the offense, the State must prove beyond a reasonable
doubt that: "(1) a restraining order was issued under the [PDVA]; (2) the
defendant's violation of the order; (3) that defendant acted purposely or
A-1017-22 15 knowingly; and (4) the conduct that constituted the violation also constituted a
crime or disorderly persons offense." 6 State v. Chenique-Puey, 145 N.J. 334,
341-42 (1996).
Under N.J.S.A. 2C:2-11(b), the "harm or evil sought to be prevented" by
N.J.S.A. 2C:29-2(b)(2) is the "vindication of the authority of the court . . . [as]
court orders must be obeyed." In re Adler, 153 N.J. Super. 496, 501 (App. Div.
1977) (internal quotation marks omitted). "Restraining orders are entered for
purposes of shielding a victim who needs protection and who is compelled to
seek judicial assistance to obtain that security[.]" State v. Gandhi, 201 N.J. 161,
189 (2010). Issuance of restraining orders under the PDVA "effectuates the
notion that the victim of domestic violence is entitled to be left alone. To be left
alone is, in essence, the basic protection the law seeks to assure" victims of
domestic violence. State v. Hoffman, 149 N.J. 564, 584 (1997)); see also In re
Forfeiture of Pers.Weapons and Firearms Identification Card Belonging to F.M.,
225 N.J. 487, 509 (2016) (quoting Hoffman, 149 N.J. at 584-85) (explaining
domestic violence restraining orders entered pursuant to the PDVA are intended
6 Where, as here, the conduct constituting the alleged violation of a TRO "would otherwise not constitute a crime," the contempt charge "is treated as a criminal disorderly persons offense." State v. E.J.H., 466 N.J. Super. 32, 37 (App. Div. 2021); see also N.J.S.A. 2C:29-9(b)(2). A-1017-22 16 to prevent the harm or evil presented by "those who commit acts of domestic
violence, [who] may 'have an unhealthy need to control and dominate their
partners and frequently do not stop their abusive behavior despite a court
order'").
Here, the State's allegations concerning defendant's actions, which we
accept as true for purposes of our analysis of the dismissal motion under
N.J.S.A. 2C:2-11, caused, and threatened to cause, the harm sought to be
prevented under N.J.S.A. 2C:29-2(b)(2), the contempt statute pursuant to which
defendant was charged. The plaintiff sought the protections afforded to victims
of domestic violence under the PDVA by obtaining the TRO and reported to the
police defendant's alleged violations of the TRO—numerous telephone calls to
him and returns to the residence—within one hour of service of the TRO and her
release from custody on charges she assaulted the plaintiff, who reported to the
officers he feared for his life. To be sure, the plaintiff later requested dismissal
of the TRO and the disorderly persons offense charges, but his change of heart
does not alter the fact that defendant's alleged actions in violating the TRO
caused and threatened to cause the harm or evil—violations of a properly issued
TRO and of an alleged domestic violence victim's right to be left alone—
N.J.S.A. 2C:29-2(b)(2) was intended to prevent.
A-1017-22 17 For the same reasons, we reject defendant's claim the contempt
prosecution should be dismissed as de minimis because the alleged violation of
N.J.S.A. 2C:29-2(b)(2) is "to too trivial to warrant the condemnation of
conviction." N.J.S.A. 2C:2-11(b). "[W]hat is most important" in assessing the
triviality of a defendant's conduct under N.J.S.A. 2C:2-11(b) "is the risk of harm
to society of defendant's conduct." Evans, 340 N.J. Super. at 253 (citing Zarrilli,
216 N.J. Super at 239).
In Evans, we reversed the dismissal of a shoplifting prosecution finding
the defendant's theft of a $12.90 hair bow was not trivial under N.J.S.A. 2C:2-
11(b) because of the seriousness of the risk of harm to society presented by the
offense of shoplifting. Ibid. So too here, we find nothing trivial in defendant's
actions in contacting the plaintiff through seventeen phone calls and twice being
at the residence in violation of the TRO during early morning hours immediately
following her release from custody after being charged with assaulting the
plaintiff. Defendant's alleged actions posed a significant risk of harm to society
because her actions are precisely those the PDVA is intended to prohibit and
A-1017-22 18 prevent.7 See, e.g., Hoffman, 149 N.J. at 587-90 (finding defendant violated the
contempt statute by "sending . . . two mailings" to the victim); State v. E.J.H.,
466 N.J. 32, 39 (App. Div. 2021) (reinstating contempt charge under N.J.S.A.
2C:29-9(b)(1), based on a violation of a restraining order entered under the
PDVA, after finding the defendant "was aware of the high probability" the
7 We are aware that in assessing the risk of harm to society posed by a defendant's conduct under N.J.S.A. 2C:2-11(b), the court may consider the following subordinate factors:
(a) The circumstances surrounding the commission of the offense. . . .
(b) The existence of contraband.
(c) The amount and value of the property involved.
(d) The use or threat of violence.
(e) The use of weapons.
[(Evans, 340 N.J. Super. at 250) (quoting Zarrilli, 216 N.J. Super at 240).]
The court did not consider or assess these factors in its analysis of defendant's motion. In our de novo review of the motion, and for the reasons we explain, we find nothing in the circumstances of the offenses, as alleged by the State, supporting a finding defendant's conduct did not pose a risk of harm to society. Although her conduct did not involve contraband, property, or the use of weapons, defendant's alleged violation of a TRO issued pursuant to the PDVA and physical resistance to the officers' efforts to arrest her support our determination the charged conduct presented a risk of harm to society. A-1017-22 19 victim would hear comments and observe a gesture directed at her through a
security camera).
In sum, for those reasons, we therefore conclude the court abused its
discretion by finding defendant was entitled to a dismissal of the prosecution of
the contempt charge based on its determination defendant's alleged actions
constituted a de minimis infraction under N.J.S.A. 2C:2-11(b).
Defendant is also not entitled to a dismissal of prosecution of the
disorderly persons resisting arrest charge under N.J.S.A. 2C:2-11(b). The record
does not support the court's conclusory determination that defendant's defiance
of the officers' orders to exit her vehicle to be arrested, and flailing of her arms
and body to prevent the officers from placing her in handcuffs, did not actually
cause or threaten the harm or evil sought to be prevented by N.J.S.A. 2C:29-
2(a)(1), the statute pursuant to which defendant was charged with resisting
arrest.
N.J.S.A. 2C:29-2(a)(1) provides that a person is guilty of the disorderly
persons offense of resisting arrest "if [s]he purposely prevents or attempts to
prevent a law enforcement officer from effecting an arrest." The Supreme Court
has explained that "the text, composition, and structure of N.J.S.A. 2C:29-2
reveal an overall legislative purpose to avoid physical confrontation between
A-1017-22 20 arrestees, police officers, and the public." State v. Brannon, 178 N.J. 500, 508
(2004).
In enacting N.J.S.A. 2C:29-2, the Legislature eschewed the MPC's "view
that mere non-submission should not be an offense, believing an affirmative
policy of submission to be appropriate as now seems to be our law." Ibid.
(quoting 2 The New Jersey Penal Code, Final Report of the New Jersey Criminal
Law Revision Commission, commentary 1 on § 2C:29-2 at 282 (1971). "[A]
person has no right to resist arrest by . . . any . . . means, even if the arrest
constitutes an unreasonable seizure under the constitution." State v. Crawley,
187 N.J. 440, 453 (2006). Most simply stated, under N.J.S.A. 2C:29-2(a), a
person is required to "submit to an arrest, even if illegal." Ibid.
The harm or evil sought to be prevented by N.J.S.A. 2C:29-2(a) is the
avoidance of "self-help" by individuals against law enforcement officers'
attempts to arrest. Id. at 453-54. The policy underlying the resisting arrest
offense is "that in a society governed by laws[,] our courts are the proper forum
for challenges to the misuse of official power and for the vindication of rights."
Id. at 454. The statute embodies a recognition that "resisting arrest greatly
increases the likelihood of physical harm to both the arresting officers and the
suspect, as well as innocent bystanders." Ibid.
A-1017-22 21 Defendant's actions in refusing to follow the officers' directives that she
exit her vehicle, and her subsequent flailing of her arms and body in response to
the officers' efforts to place her in handcuffs, threatened the harm or evil sought
to be prevented by N.J.S.A. 2C:29-2. Indeed, defendant did not submit to the
officers' orders and physical efforts to place her under arrest. She defied them.
And, in doing so, the officers were compelled to physically remove her from the
vehicle and physically confront the flailing of her arms and body while they
attempted to effectuate a lawful arrest. Those physical interactions, borne from
defendant's defiance and actions, are precisely the harm and evil the resisting
arrest statute sought to prevent.
Further, defendant's actions were not trivial under N.J.S.A. 2C:2-11(b).
Defendant was defiant throughout the incident, first refusing to exit the vehicle
and then physically resisting the officers' efforts to place her in handcuffs. That
defendant did not use or threaten to use physical force against the officers or
create a substantial risk of causing physical injury to the officers or others is
pertinent only to a determination of the degree of the offense for which she was
charged. See N.J.S.A. 2C:29-2(a)(3)(a) and (b) (defining elements of third-
degree resisting arrest). As to the disorderly persons resisting arrest offense with
which she was charged under N.J.S.A. 2C:29-2(a)(1), defendant's actions posed
A-1017-22 22 a risk of harm to society—the creation of disorder and physical interactions with
the officers—that is not "too trivial to warrant the condemnation of conviction"
of the disorderly persons offense. N.J.S.A. 2C:2-11(b); see also Evans, 340 N.J.
Super. at 252. Defendant is therefore not entitled to a dismissal of the
prosecution for resisting arrest under N.J.S.A. 2C:2-11(b).
The court also erred by dismissing the prosecution of both charges under
subsection (c) of N.J.S.A. 2C:2-11 based on its conclusory determination that
defendant's conduct presented extenuations such "that it cannot reasonably be
regarded as envisaged by the Legislature in forbidding the offense." The court
did not identify any such extenuations as to either charge, defendant does not
point to evidence of any, and we find none.
Accepting the State's allegations as true, defendant brazenly violated the
TRO by calling the plaintiff seventeen times and entering his residence within
minutes of being served with a TRO that expressly prohibited such conduct.
There is simply nothing in defendant's alleged conduct, nor the circumstances
surrounding it, supporting a reasoned conclusion that defendant's actions are
beyond those which the Legislature envisioned in enacting N.J.S.A. 2C:29-
2(a)(1). And, in our view, defendant's apparent desire to obtain the return of her
dog is simply not an extenuation vaulting her alleged numerous violations of the
A-1017-22 23 TRO beyond what the Legislature intended would be prohibited by N.J.S.A.
2C:29-2(a)(1).
The record similarly lacks evidence of any extenuations such that
prosecution of defendant for resisting arrest, based on her defiance and physical
actions in response to the officers' efforts to place her in custody, is beyond that
which the Legislature intended in its enactment of N.J.S.A. 2C:29-9(b)(2).
Again, in our view, defendant's concern for her dog was not an extenuating
circumstance such that her resistance to the officers' orders and efforts to place
her under arrest falls outside what the Legislature, which adopted the statute to
make clear arrestees must simply submit to officers' efforts to arrest, intended.
In sum, the record is simply bereft of extenuating circumstances supporting
dismissal of the prosecution of the charges under N.J.S.A. 2C:2-11(c).
We reject defendant's claim the court correctly granted her motion for
dismissal of the prosecution on the charges because she did not commit the
offenses charged. As noted, the court's decision accepted defendant's claims and
effectively granted the motion based on a finding defendant did not commit the
offenses. It was error to do so, and we will not repeat the error by offering an
opinion on defendant's guilt of the offenses or by considering defendant's claim
we should affirm the order because she did not commit them. Defendant is
A-1017-22 24 presumed innocent of the charges until the State satisfies its burden of proving
her guilt beyond a reasonable doubt. For purposes of the analysis of the
dismissal motion under N.J.S.A. 2C:2-11, however, we must "assume[] the
conduct charged actually occurred," Zarrilli, 216 N.J. Super. at 236; Evans, 340
N.J. Super. at 249, and, in doing so, we find no support in the record for a
dismissal of the prosecution on either charge.
Reversed and remanded. We do not retain jurisdiction.
A-1017-22 25