STATE OF NEW JERSEY VS. NASIR FINNEMEN(A-07-15, CAMDEN COUNTY AND STATEWIDE)
A-2717-15T1
| N.J. Super. Ct. App. Div. | Oct 6, 2017Background
- On July 17, 2014, police responded to a Walgreens after an employee reported a customer (Nasir Finnemen) harassing customers, yelling obscenities and making obscene gestures toward employees across the street.
- Sergeant Beach and Officer Schaeffer located Finnemen at a nearby bus stop; Beach testified Finnemen was irate, yelling profanities and repeatedly making obscene gestures despite repeated commands to calm down.
- Beach issued a disorderly conduct summons and directed Finnemen to move to another bus stop; Finnemen walked away, called 9-1-1 to complain about the officers, and continued to yell and cause a scene when officers returned.
- Officers attempted to arrest Finnemen; he resisted by pulling away, twisting, tucking his arms under his body, and fighting while they attempted to handcuff him. Finnemen used a cane but never told officers of any shoulder injury.
- Municipal court convicted Finnemen of disorderly conduct and resisting arrest; on de novo review the Law Division affirmed the convictions, crediting the officers’ testimony over Finnemen’s. The Appellate Division affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of unrelated December 14, 2012 videotape | Tape irrelevant to charged incident; should be excluded | Tape shows pattern or context for conduct | Excluded as irrelevant; no logical connection to facts in issue (affirmed) |
| Credibility of Sergeant Beach | Beach’s trial testimony is reliable and supported by report and witnesses | Beach’s investigative report conflicts with testimony (omitted gestures; wrong hand cuffed) | Credibility findings by municipal court and Law Division affirmed; discrepancies not material |
| Disorderly conduct (N.J.S.A. 2C:33-2(a)(1)) | Defendant’s loud, profane, obscene gestures across from Walgreens amounted to tumultuous behavior intended to cause public annoyance/alarm | Yelling across the street was not tumultuous; insufficient as a matter of law | Evidence supported purpose or reckless creation of risk; conviction upheld |
| Resisting arrest (N.J.S.A. 2C:29-2(a)) | Defendant purposely resisted arrest by pulling away, twisting, fighting and preventing handcuffing | Resistance was due to shoulder injury; lacked requisite criminal intent | No evidence defendant informed officers of an injury; facts support purposeful resistance; conviction upheld |
Key Cases Cited
- State v. Cole, 229 N.J. 429 (2017) (relevance requires logical connection between proffered evidence and fact in issue)
- State v. Robertson, 228 N.J. 138 (2017) (Law Division trial de novo defers to municipal court credibility findings)
- State v. Barone, 147 N.J. 599 (1997) (appellate courts do not reweigh evidence or reassess credibility)
- State v. Locurto, 157 N.J. 463 (1999) (deference to municipal court credibility findings; two-court rule)
- State v. Stampone, 341 N.J. Super. 247 (App. Div. 2001) (discussion of "tumultuous" and definitions relevant to disorderly conduct)