                                NOT FOR PUBLICATION WITHOUT THE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-1604-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN E. ALEXANDER,

     Defendant-Appellant.
__________________________

                   Submitted June 17, 2020 – Decided July 24, 2020

                   Before Judges Koblitz and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Municipal Appeal No.
                   03-17.

                   Amy Elizabeth Vasquez, attorney for appellant.

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Jennifer Bentzel Paszkiewicz,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a trial de novo in the Law Division, defendant John Alexander

was convicted of disorderly persons resisting arrest, N.J.S.A. 2C:29-2, and

sentenced to pay a fine of $500 and costs and assessment of $158. He appeals ,

arguing that there was insufficient evidence to establish beyond a reasonable

doubt that he resisted arrest. We discern no grounds to reject the Law Division's

factual findings that were based on the testimony of the arresting officer and a

review of videos of the arrest. Accordingly, we affirm.

                                        I.

      The trial de novo was conducted on a review of a municipal court record.

R. 3:28-8(a).   At trial, two witnesses testified:   Officer Steven Elmer and

defendant. The State also introduced into evidence videos, with no audio, of the

arrest and the processing of defendant at the police "substation."

      Officer Elmer, who arrested defendant, testified that he was asked to assist

a fare enforcement officer who detained defendant to review his train ticket.

The enforcement officer told Elmer that defendant was not cooperating and not

providing "enough info[rmation]." Consequently, Elmer told defendant he was

under arrest for theft of services. Elmer handcuffed defendant and testified that

defendant resisted by continuously turning around and another officer had to




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                                        2
assist Elmer in putting the handcuffs on defendant.        While providing that

testimony, Elmer reviewed a video of the arrest. In that regard, Elmer testified:

            Q.   So Officer, someone walked up behind the
            defendant and placed handcuffs on him. Is that you?

            A.     I did. At that point, the fare person told me he
            wasn't cooperating and he didn't give enough info so, at
            that time, he was - - I told him he was under arrest for
            theft of service and I proceeded to put the first cuff on
            his left wrist.

                                 (video played)

            A.     He immediately started saying I was hurting him
            before I even got the second cuff on and then he
            continues turning around. He's talking at me and I'm
            telling him to calm down and then he's still resisting
            and Officer Weiss (phonetic) had to assist me and then
            off camera right now is when we are trying to cuff him.
            I even put my hand on his chest and told him to calm
            down and end up doing a control half pitfalls (sic) to
            control him until Sergeant Weiss (phonetic) helped me
            finish cuffing him.

      Defendant was taken to the substation next to the train station for

processing. Elmer also reviewed a video of that processing and testified that

defendant resisted when Elmer tried to search him incident to his arrest.

Concerning the processing, the relevant portion of the trial transcript reads:

            THE COURT:         All right. For the record, it's 5/20/16
            at 6:09:16 on the video.



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                                        3
            A.    That was me that just came into the screen, the
            picture of this area.

            Q.     Officer, is that you that we see in the video?

            A.     Yes.

            Q.     And that's the defendant there, Mr. Alexander?

            A.     Correct.

            Q.     And who is - - who's the sergeant?

            A.     Sergeant Melvin Webb (phonetic).

            Q.     And what did he just do at that point?

            A.    He's trying to twist around and face me. I'm just
            trying to search him.

      Defendant testified that after he got off the train, a fare enforcement

officer questioned him about his ticket. He explained that he had purchased two

tickets and he became "a little irate" about being questioned about something he

considered to be "nonsense." In response to questions from the enforcement

officer, defendant gave his name and address, but could not remember his Social

Security number. At that point, the enforcement officer told another officer that

defendant was not cooperating, and that second officer put handcuffs on him.

Concerning the arrest itself, defendant testified:

            As you see there in the tape, the officer approached over
            to me. He put his handcuffs on me. The first one he

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                                         4
            put on me was tight enough to cut my wrist. I
            immediately turned as is shown on the video and asked
            him why, why did he have to put the cuff on so tight?
            From that point in time, when the wrists were - - when
            the arrest was effectuated, they went on and took me
            down the track. From there, that I sat there and I gave
            - - allowed them to go ahead and search my bag which
            had information which actually came up on
            (indiscernible) Trenton which had not only my date of
            birth and all the information that they needed. Without
            a Social Security number, they would have known who
            I was.

      Defendant was charged with three disorderly persons offenses: theft of

services, N.J.S.A. 2C:20-8; hindering his apprehension, N.J.S.A. 2:20-8; and

resisting arrest. The municipal judge found defendant not guilty of theft of

services, but guilty of hindering and resisting. The judge then merged the

hindering conviction into the resisting conviction and sentenced defendant to

pay a fine, costs, and assessment.

      As already noted, defendant sought de novo review in the Law Division.

After reviewing the trial testimony and the videos, the Law Division judge found

defendant guilty of resisting arrest and sentenced defendant to pay the same fine,

costs, and assessment imposed by the municipal judge.




                                                                          A-1604-17T4
                                        5
                                       II.

      On appeal, defendant makes one argument:

            I.  THE LAW DIVISION ERRED IN FINDING
            DEFENDANT    GUILTY   OF     DISORDERLY
            CONDUCT IN VIOLATION OF N.J.S.A. 2C:[29-2].

      Our review of a trial de novo in the Law Division is limited. We decide

whether the Law Division judge's factual findings are supported by sufficient

credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State

v. Johnson, 42 N.J. 146, 161 (1964)); see also State v. Robinson, 228 N.J. 138,

148 (2017); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). Our

Supreme Court has directed that our review of video evidence is also deferential.

State v. S.S., 229 N.J. 360, 381 (2017). Accordingly, a trial court finding based

on video evidence can only be reversed on appeal if the trial court's

interpretation of the video evidence was so wide of the mark that the interests

of justice demand intervention. Ibid. (citing State v. Elders, 192 N.J. 224, 245

(2007)).

      "A person is guilty of a disorderly persons offense if he purposely prevents

or attempts to prevent a law enforcement officer from effectuating an arrest."

N.J.S.A. 2C:29-2(a)(1). It is not a defense to claim that the arrest was unlawful

"provided [the officer] was acting under the color of his official authority and


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                                        6
provided the law enforcement officer announces his intention to arrest prior to

the resistance." N.J.S.A. 2C:29-2(b).

      The law is not at issue on this appeal. Accordingly, the limited question

on this appeal is whether the Law Division's factual findings are supported by

sufficient credible evidence in the record. Having reviewed the record, we are

constrained to defer to the factual findings by the Law Division. The Law

Division relied on the testimony of the arresting officer, Officer Elmer. While

the judge did not expressly find Officer Elmer credible, his reliance on his

testimony indicates that he found him credible.     Locurto, 157 N.J. at 472

(citations omitted) ("[T]he Court found it unnecessary for a trial court to

enunciate credibility findings when the record as a whole made the findings

clear."). The judge also found that the video evidence was consistent with, and

corroborated the officer's testimony. Based on that evidence, the Law Division

judge found that defendant resisted arrest when he was initially placed in

handcuffs and when he was searched incident to his arrest.

      Defendant argues that the evidence shows that the handcuffs were placed

too tightly on him and he was not resisting arrest; rather, he was asking the

officer to stop hurting him.   In connection with that argument, defendant

contends that in his closing argument in the municipal court he stated that he


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                                        7
had sought medical treatment for a cut on his wrist after he was released, but

neither the municipal judge nor the Law Division judge considered that

contention.

      The Law Division judge considered defendant's testimony that the

handcuffs were too tight, but apparently did not find that testimony credible or

a valid excuse for defendant's resistance. The Law Division judge also did not

commit reversible error by not considering a contention made in closing

arguments.

      Defendant also argues that Officer Elmer gave improper opinion

testimony on the ultimate issue of guilt. In that regard, defendant relies on the

following exchange when defendant cross-examined Officer Elmer:

              Q.   Thirty seconds. Why did it take that long?

              A.   You were resisting.

              Q.   I was resisting as of when?

              A.    You were pulling away. You kept twisting as you
              can see here, facing Officer Weiss now instead of the
              fence still. So you twisted yourself and then, when I
              am still trying to cuff you - -

              Q.   You had - -

              A.    - - You continued to twist and pull your arm
              away.


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                                         8
      The Law Division judge reviewed all the testimony in finding defendant

guilty beyond a reasonable doubt. While the judge referenced Elmer's testimony

that defendant was resisting, it is apparent that the judge did not rely solely on

that testimony. Instead, the judge agreed that defendant was resisting based on

all of the evidence presented at trial. Accordingly, the judge's reference to

Elmer's testimony concerning the ultimate issue is not grounds for reversal.

      Affirmed.




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                                        9
