State v. DeSantoState v. DeSanto
Tried to a jury, defendant was found guilty of assault and battery upon а police officer, in violation of
On this appeal, defendant‘s single contention is that it was plain error for the trial judge to have denied his motion for a judgment of acquittal at the close of the State‘s case since the State failed to establish that the victim was a law enforcement officer acting in the performance of his duties. He maintains that although the victim, Patrolman Donald Verney of the Jersey City Police Department, was wearing his Jersey City Police uniform at the time of the assault and battery, he was “not formally on duty” since “he was acting as a private security guard, being paid by the promoters of the rock concert which had been scheduled that day” in Roosevelt Stadium. On the night in question, Officer Verney was patrolling the main gate of the stadium. He had been assigned to this off-duty job by his superior, the captain of his police precinct, after volunteering for the work. Police officers were required for that assignment. Those Jersey City officers who volunteered to work аt the stadium during the rock concert were assigned to the task by the city, i.e., upon approval by the police captain — the only distinction between this job and the officers’ regular employment being that the individual who requеsted the police protection, the promoter of the rock concert, rather than the city, was paying for the service. Defendant argues, in essence,
We have considered defendant‘s contention and the argument advanced in support of it in our review of the record submitted on the aрpeal. We find the issue raised by defendant to be clearly without merit.
Here, there is ample evidence in the record to support a finding of defendant‘s guilt of the crime charged in the indictment, beyond a reasonablе doubt. The conditions prescribed in
... the [police] uniform has the same signifiсance to the public whether the wearer is technically on or off duty.... in such a situation [the municipality] and its public expect and obtain real benefits from [the police officer]. [at 85]
See, also, State v. Coleman, 224 Kan. 447, 580 P.2d 1329 (Sup.Ct. 1978), and cases cited therein. There, the court was called upon to determine the propriety of defendant Coleman‘s conviсtion for aggravated battery upon a law enforcement officer (
Aggravated battery against a law enforcement officer is an aggravated battery, as defined in section 21-3414, committed against a uniformed or proрerly identified state, county, or city law enforcement officer while such officer is engaged in the performance of his duty.
Aggravated battery against a law enforcement officer is a class B felony.
In affirming the cоnviction the Supreme Court of Kansas concluded that “under the factual circumstances in the ... case, officer Fuson was engaged in the performance of his duty as a law enforcement officer at the time the aggravated battery was committed against him by the defendant.” 580 P.2d at 1333. It pointed out that:
... Here the aggravated battery occurred аfter the police officer had identified himself as such and while the officer was in the process of arrеsting the defendant for a crime committed in the officer‘s presence. We hold that a police officer who is working during his off-duty hours as a part-time store employee in detecting and apprehending shoplifters, who observes a customer secreting merchandise on his person, who identifies himself as a police offiсer to the customer outside the store, and who advises the customer that he is under arrest for shoplifting, is a law enforcement officer “engaged in the performance of his duty” within the provisions of K.S.A. 21 3415. [Id.]
The conviction and sentence under review are affirmed.