                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-3764-14T2


STATE OF NEW JERSEY,
                                             APPROVED FOR PUBLICATION
           Plaintiff-Respondent,
                                                December 14, 2016
    v.                                         APPELLATE DIVISION

MICHAEL RICHARD POWERS,

           Defendant-Appellant.

__________________________________________________

           Argued September 20, 2016 – Decided December 14, 2016

           Before Judges Fisher, Ostrer and Leone.

           On appeal from the Superior Court of New
           Jersey, Law Division, Middlesex County,
           Municipal Appeal No. 49-2014.

           Michael Richard Powers,         appellant,     argued
           the cause pro se.

           Jason M. Boudwin, Assistant Prosecutor,
           argued the cause for respondent (Andrew C.
           Carey, Middlesex County Prosecutor, attorney;
           Mr. Boudwin, of counsel and on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    Defendant was convicted after a trial in municipal court,

and again upon his appeal to the Law Division, of obstruction,

which   occurs   when,   as   pertinent    here,    a   person   "purposely
obstructs,    impairs     or     prevents    .   .   .   a    public    servant        from

lawfully     performing     an   official    function         by    means   of    .    .   .

physical interference . . . or by means of any independently

unlawful act." N.J.S.A. 2C:29-1(a). The State claimed that by

way of "physical interference" and by means of an "independently

unlawful     act"   defendant      obstructed        a   state      trooper      in     the

issuance of a summons for a parking violation at a New Jersey

Turnpike rest stop. We conclude that defendant could not be

convicted of obstruction by means of "an independently unlawful

act"   but   remand   for      further   findings        as    to    what   the       judge

believed constituted "physical interference."

       In considering defendant's argument about the sufficiency

of the evidence,1 we start by recognizing that, on an appeal of a

municipal conviction, a Law Division judge is "to determine the

case completely anew on the record made in the municipal court,

giving due, although not necessarily controlling, regard to the

opportunity of the magistrate to judge the credibility of the


1
  Defendant's attack on the sufficiency of the evidence is posed
over the course of two points of his brief. Defendant argues in
his other points that: (1) the municipal judge failed to arraign
him as required by Rule 7:6-1; (2) the municipal judge erred in
denying his motion for a judgment of acquittal; (3) the State
"did not disprove [his] affirmative defense beyond a reasonable
doubt"; (4) the State failed to provide discovery; and (5) the
municipal judge improperly reinstated the charges when he had
previously dismissed them.    Because of our disposition of the
appeal, we need not reach these other points.



                                         2                                       A-3764-14T2
witnesses."       State v. Johnson, 42 N.J. 146, 157 (1964). Our

review of the factual record is also limited to determining

whether there is sufficient credible evidence in the record to

support the Law Division judge's findings.           Id. at 161-62; State

v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).

Accordingly, we defer to those findings made in the Law Division

that are supported by credible evidence, but we owe no deference

to the legal conclusions drawn from those findings. State v.

Handy, 206 N.J. 39, 45 (2011).

    By way of a written opinion, the Law Division judge found

that, on November 6, 2013, at a Woodbridge rest stop on the New

Jersey Turnpike, defendant and another motorist had parked their

vehicles in a no-parking area.            A state trooper came upon these

two unoccupied vehicles and provided a dispatcher with their

license plates to ascertain whether the vehicles were stolen or

abandoned. As this occurred, defendant exited the building and

approached.      The    trooper   asked    for   defendant's   license     and

explained   he    was    citing   defendant's    vehicle   because   it    was

parked in a no-parking area.

    The trooper instructed defendant to enter his vehicle; the

trooper testified this instruction was based on his concern for

defendant's safety due to the amount of traffic at the rest

stop. Defendant did not comply. In addition, as the Law Division




                                      3                              A-3764-14T2
judge observed, "defendant's hands repeatedly [went] in and out

of his pockets," causing the trooper to instruct defendant not

to do that. When defendant did not comply, the trooper grabbed

defendant's wrist and again instructed him to keep his hands out

of his pockets.        With that, defendant responded, "Why did you

grab me?     Why did you assault me?"; he removed a cellphone from

his   vehicle    and    dialed    9-1-1,    reporting     he    had      just   been

assaulted by an officer. Upon observing defendant recite his

patrol car numbers during this phone call, the trooper called

for backup.

      The    trooper    again    instructed    defendant       to   get    in    his

vehicle.     Defendant again refused; he told the trooper he was an

attorney, knew his rights, and was waiting for "direction from

someone on the phone."           When another trooper arrived, defendant

was arrested.

      In interpreting the significance of these events, the Law

Division judge described the issue as whether defendant, "in

failing to comply with the trooper's orders to keep his hands

out of his pockets and sit in his vehicle for the duration of

the motor vehicle stop," obstructed the officer.

      As    noted    earlier,    N.J.S.A.    2C:29-1(a)    declares         that    a

person     commits   the   offense    of    obstruction    "if      he   purposely

obstructs, impairs . . . or attempts to prevent a public servant




                                       4                                   A-3764-14T2
from    lawfully    performing    an     official     function   by   means     of

flight, intimidation, force, violence, or physical interference

or obstacle, or by means of any independently unlawful act." The

Law    Division     judge    concluded       that   defendant    impaired      the

trooper's performance by both "physical interference" and "by

means of an[] independently unlawful act," ibid., but it is far

from clear whether he drew those different conclusions from the

same facts, as suggested in his opinion by these comments:

             Although [d]efendant acted without violence,
             his conduct (i.e., standing outside of his
             car and repeatedly putting his hands in his
             pockets) directly opposed [the] [t]roop-
             er['s] instructions and physically inter-
             fered with the officer's ability to perform
             his official duties of issuing the summons
             while protecting his own safety and the
             safety of others.

                   . . . .

             Notwithstanding the [c]ourt's finding that
             [d]efendant in this case did in fact
             physically interfere[] with the officer's
             ability to carry out his duties, the [c]ourt
             also finds, supra, that even absent such
             physical interference, [d]efendant is still
             guilty of obstruction on the independent
             basis that [d]efendant committed an unlawful
             act.

In short, the judge may have relied on the same facts – that

defendant stood outside his vehicle and repeatedly put his hands

in    and   took   his   hands   out   of    his    pockets   contrary   to    the

trooper's directions – to conclude that defendant impeded the




                                         5                               A-3764-14T2
trooper by both physically interfering and by engaging in an

independently unlawful act.

      Nonetheless, it is unclear exactly how the judge believed

defendant's failure to obey the trooper's commands physically

interfered with his ability to write or issue a parking ticket.

Nor is it clear whether the judge believed defendant engaged in

additional, unspecified conduct that physically interfered with

the   trooper,   such      as     standing   in    his   path    or    physically

distracting him.     What constitutes obstruction may often turn on

the precise details of the charged conduct.                     Absent clearer

findings, we cannot determine where on the existing continuum of

similar cases2 this matter might be found.

      Because of this lack of clarity and the absence of specific

findings   to    support        the   judge's     conclusion    that   defendant




2
  In State v. Rone, 410 N.J. Super. 589, 596-97 (App. Div. 2009),
the evidence was sufficient to support an obstruction conviction
where the defendant arrived at the police stop, parked her
vehicle between the stopped vehicle and the police vehicle, and
later briefly stood between the two vehicles. And, in State v.
Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985), an
obstruction conviction was affirmed where, during a motor
vehicle stop, the defendant attempted to move her car contrary
to an officer's directions.     On the other hand, in State v.
Camillo, 382 N.J. Super. 113, 118 (App. Div. 2005), we held that
the defendant's refusal to provide requested information "may,
in fact, have in a real sense obstructed the trooper from
preparing his report" but that, "in the absence of physical
interference," he could not be found to have violated N.J.S.A.
2C:29-1(a).



                                         6                               A-3764-14T2
physically interfered with the trooper, we remand for further

findings.

      The     Law    Division         judge,   however,        was    clear   about      the

conduct he believed constituted an "independently unlawful act."

The   judge    found       that      defendant's     actions      were     "independently

unlawful"     by    force       of    N.J.S.A.     39:4-57,     which      provides    that

"[d]rivers of vehicles . . . shall at all times comply with any

direction, by voice or hand, of a member of a police department"

when the officer is in the course of "enforcing a provision of

this chapter." As part of his analysis of this statute, the Law

Division judge determined the trooper was enforcing "a provision

of this chapter" when issuing a summons because the vehicle was

parked in violation of N.J.A.C. 19:9-1.6.                       We disagree with the

judge's application of this statute.

      First,        N.J.S.A.         39:4-57       has    no    application        because

defendant was not at the time a "driver[] of [a] vehicle[]." He

was   not   inside        the   vehicle    and,      in   fact,      the   State   insists

obstruction occurred in part because defendant refused to enter

his   vehicle        at     the      trooper's       direction;       that     contention

logically defies what it means to be a driver of a vehicle

whether we apply existing case law3 or the law of physics.4


3
  The Legislature's definition of "driver" is not helpful in
resolving the issue presented. N.J.S.A. 39:1-1 (defining
                                                  (continued)


                                               7                                   A-3764-14T2
       Second, the trooper was not in the process of enforcing

what    N.J.S.A.   39:4-57   refers       to   as   "a   provision   of   this

chapter." The statute refers only to Chapter 39. Because the

trooper was not citing defendant for a moving violation or any

provision of Chapter 39, and instead was only in the process of

writing a ticket because defendant parked in a prohibited area,




(continued)
"[d]river" as "the rider or driver of a horse, bicycle or
motorcycle or the driver or operator of a motor vehicle, unless
otherwise specified" in Chapter 39).    Questions regarding the
nature of a defendant's relationship to a vehicle frequently
arise when the defendant is charged with "operat[ing] a motor
vehicle" while under the influence, N.J.S.A. 39:4-50(a). But
"operation" suggests a broader scope of conduct than "driving."
See State v. Wright, 107 N.J. 488, 491 n.1 (1987) (relying on
the definition of "operator" in N.J.S.A. 39:1-1, as "a person
who is in actual physical control of a vehicle"). In Wright, the
Court found "evidence that defendant was sitting in the driver's
seat with the headlights on and the motor running seems to be
sufficient to establish that he was the 'operator' of the car."
107 N.J. at 491 n.1. In referring to another case decided the
same day, State v. Mulcahy, 107 N.J. 467 (1987), the Court held
a defendant was operating a vehicle because he "put [the] key in
[the] ignition [with the] intent to drive [the] car." 107 N.J.
at 491 n.1 (emphasis added). Wright and Mulcahy, in short,
recognize that "driving" a car involves the guiding of the
vehicle while in motion, whereas "operating" involves some
physical control over the vehicle with an "intent to drive."
Wright, supra, 107 N.J. at 491 n.1.    Either way, until modern
technology causes a revisiting of what it means to "operate" or
"drive" a vehicle, our jurisprudence does not view a person in
possession of car keys but not actually inside the vehicle as a
"driver."
4
  Just as Schrödinger's cat cannot logically be observed as both
dead and alive at the same time, defendant could not be both
inside and outside his vehicle at the same time.



                                      8                              A-3764-14T2
N.J.S.A.   39:4-57     cannot          form    a    basis    for       the    independently

unlawful act found by the Law Division judge.

    Although     we    agree       with       the    judge       that       the   obstruction

statute was intended "to prohibit a broad range of behavior

designed    to      impede        or     defeat       the        lawful       operation     of

government," Camillo, supra, 382 N.J. Super. at 116-17 (quoting

Final Rep. of the N.J. Criminal Law Revision Comm'n (1971), Vol.

II, at 280), we cannot lose sight of the fact that we are

construing the elements of a criminal offense.                                See State v.

Churchdale Leasing, 115 N.J. 83, 102 (1989) (holding that courts

are obligated to strictly construe ambiguous criminal and quasi-

criminal    statutes).       We        therefore       reject         the    invitation      to

loosely    interpret       what    it     means       to    be    a    "driver[]      of    [a]

vehicle[]" or what constitutes a violation of Chapter 39 in

determining whether the facts found by the Law Division judge

support a conviction for obstruction.

    In concluding defendant was not obligated by N.J.S.A. 39:4-

57 to comply with the trooper's commands that he remove his

hands from his pockets or enter his own vehicle, we reject the

argument that defendant engaged in an "independently unlawful

act" as the basis for his obstruction conviction. And, as noted

above,    because    the     judge       was       unclear   about          the   actions    of




                                               9                                     A-3764-14T2
defendant that he believed constituted "physical interference,"

we remand for further findings.

    Remanded.   We do not retain jurisdiction.




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