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

• Court: New Jersey Superior Court Appellate Division
• Decided: November 2, 2017
• Docket: A-0821-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

2 A-0812-15T2 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.

3 A-0812-15T2 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

4 A-0812-15T2 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).

6 A-0812-15T2 (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

7 A-0812-15T2 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

8 A-0812-15T2 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

9 A-0812-15T2 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).

10 A-0812-15T2 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

11 A-0812-15T2 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.

12 A-0812-15T2