Date: 03-22-2016

Case Style: STATE OF NEW JERSEY VS. EMIL M. MARIN

Case Number: A-2486-13T3

Judge: Ellen Koblitz

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Suzanne E. Cevasco, John L. Molinelli, Joseph W. Torre

Defendant's Attorney: Carmine R. Alampi

Description: Following a trial de novo in the Law Division, defendant
Emil M. Marin appeals from the Law Division's finding of guilt
of the disorderly persons offense of hindering his own detention
by lying to the police about having a middle name, in violation
of N.J.S.A. 2C:29-3(b)(4); and the petty disorderly persons
offense of criminal trespass on posted railroad property, in
violation of N.J.S.A. 2C:18-3(b)(2). For the offense of giving
false information concerning his middle name, defendant, who had
no prior history of criminal violations, was penalized with a
$350 fine, $33 in court costs, a $50 Victims of Crime
Compensation Board (VCCB) assessment, and a $75 Safe
Neighborhood Services Fund (SNSF) assessment. For the trespass
offense, he was assessed a $200 fine, $33 in court costs, a $50
VCCB assessment, and a $75 SNSF assessment. After considering
the numerous issues raised in defendant's brief, we affirm the
trespassing conviction but reverse the conviction for giving
false information to avoid detention. The State produced
insufficient evidence that defendant lied for the purpose of
avoiding his own detention, in light of defendant truthfully
providing the police with his first and last name, date of birth
and home address.
Defendant represented himself in the Emerson Municipal
Court and again in the Law Division, although defendant was
offered appointed counsel. Three officers testified, and were
all found credible by the judges.
On September 26, 2012, at 3:26 p.m., Officer Anthony Mazzo
of the Emerson Police Department, who was off duty at the time,
A-2486-13T3 3
noticed defendant walking in a restricted area contiguous to the
railroad tracks. A "No Trespassing" sign was posted which
warned bystanders that the area constituted an "Active Railway."
The sign was unobstructed by any physical impediment or
precipitation that might affect visibility. Photographs of the
posted sign and surrounding area were introduced by the State.
Officer Mazzo observed defendant as he walked along the
train tracks for approximately 100 feet and saw defendant "peer
into vehicles [parked alongside the tracks] . . . and at times
getting close to the utility box." Based on his lengthy
experience as a police officer, Officer Mazzo became suspicious
that defendant might break into commuters' cars or tamper with
the utility box. Officer Mazzo was also concerned about
defendant's safety. As a result, Officer Mazzo called Officer
Joseph Alasio, who was on duty, to report defendant's
activities.
Officer Alasio went to meet Officer Mazzo, who informed him
that defendant had entered a "gold buying" store. Officer
Alasio entered the store and, after several requests for
defendant to "exit the store, so [he] could speak with him and
investigate the suspicious activity," defendant voluntarily went
outside with the officer.
A-2486-13T3 4
While outside, Officer Alasio asked defendant to identify
himself "several times." Defendant initially refused, stating,
"I don't have to do that." At trial, Officer Alasio described
defendant's disposition stating, "he was confrontational and
would not cooperate with my investigation." Officer Alasio also
described defendant as "argumentative and hostile." When
Officer Alasio's partner, Sergeant Stephen Clark, arrived on the
scene, defendant provided his first and last name, birth date
and home address.
Because Officer Alasio had not personally seen defendant
trespass, he was not legally permitted to arrest defendant.1 The
information provided by defendant was insufficient to allow the
officers to run an accurate search in their patrol-car computer
system. Skeptical of defendant's response and recognizing his
patrol car's limited search capabilities, Officer Alasio asked
defendant if he had a middle name, which defendant denied.
Nonetheless, through a call to police headquarters, Officer
Alasio was able to obtain a second, more thorough search of
defendant's information without using a middle name.
Headquarters personnel were able to determine that defendant
indeed had a middle name and outstanding arrest warrants for
1 See N.J.S.A. 40A:14-152.
A-2486-13T3 5
motor vehicle violations from Ridgefield and Paramus.2 Upon
learning of the warrants, Officer Alasio placed defendant under
arrest.
At trial, defendant called a single witness, P.S.3 At the
time of trial, she lived across the street from defendant. P.S.
testified that Officer Alasio previously resided in her home for
three months. She testified that the officer spread a lie about
her, was disliked by her friends and feared by her. After the
State's objection was sustained, no further testimony was
elicited.
The municipal court judge explained his guilty finding with
regard to the hindering detention, stating:
I'm satisfied that Officer Alasio is a law enforcement officer, and that he requested the middle name of the defendant. I am satisfied -- there is no evidence to the contrary -- that he didn't -- that the defendant did refuse to give his middle name and [in] fact specifically gave wrong information that he didn't have a middle name. As a result of that, it was found that he had several warrants outstanding. I'm satisfied that that would create the
2 Defendant maintained throughout these proceedings, by way of oral argument, that the Paramus warrant was not properly outstanding and that he was unaware of the Ridgefield warrant. He did not testify, however, so his knowledge of the issuance of these motor vehicle warrants, or lack thereof, was not placed in evidence.
3 We use initials to identify this witness to preserve her confidentiality.
A-2486-13T3 6
appearance that his purpose was to hinder his own detention. I'm, therefore satisfied that the State has proved the case beyond a reasonable doubt of hindering as well. So I find him guilty on both counts.
` The Law Division judge found defendant guilty de novo of
both charges, stating:
I do find de novo that this defendant refused to provide his full name, though, when Officer Alessio (phonetic) asked for it, if he used a middle name, and that did hinder the apprehension to verify whether or not any outstanding warrants did exist. Accordingly, I do find de novo that there was a trespass that took place by this individual, based upon the fact that there was an active railway sign that said no trespassing.
. . . .
The statute does not require that the signs be actually seen by the defendant and I believe that he did not -- he may not -- he's not from this area, he's from Ridgefield, not Emerson, I find that he may not have seen the sign, but the . . . requirement is that only that the sign be reasonably likely to come to the attention of intruders. I found that this sign was posted where it would reasonably be likely to some to the attention of those in the area.
Defendant raises the following issues on appeal:
POINT I: MR. MARIN WAS DENIED THE OPPORTUNITY TO PRESENT KEY EVIDENCE AND WAS CONFRONTED WITH IMPROPERLY ADMITTED STATE'S EVIDENCE.
A-2486-13T3 7
A. The Municipal Court Improperly Allowed The State To Introduce Photographic Evidence.
B. The Municipal Court Improperly Denied Mr. Marin The Opportunity To Present Material And Relevant Evidence.
POINT II: IT WAS IMPROPER FOR OFFICER ALASIO TO ARREST MR. MARIN FOR DEFIANT TRESPASS, AS HE DID NOT WITNESS THE ALLEGED TRESPASS.
POINT III: EVEN IF THE ARREST WERE PROPER, THE CONVICTION FOR DEFIANT TRESPASS IS NOT BECAUSE THE STATE FAILED TO PROVE ITS CASE.
POINT IV: THE HINDERING PROSECUTION CONVICTION CANNOT STAND IN THE FACE OF THE EVIDENCE THAT MR. MARIN PROVIDED HIS FIRST AND LAST NAME, ADDRESS AND DATE OF BIRTH TO THE ARRESTING OFFICER.
We defer to the credibility determinations of the two
courts, both of which found the police officers credible. See
State v. Locurto, 157 N.J. 463, 474 (1999) ("Under the two-court
rule, appellate courts ordinarily should not undertake to alter
concurrent findings of facts and credibility determinations made
by two lower courts absent a very obvious and exceptional
showing of error.").
N.J.S.A. 2C:18-3(b)(2) defines a "defiant trespasser" as a
person who, with knowledge that he or she "is not licensed or
privileged to do so," enters or remains on property as to which
notice prohibiting trespass is given by posting in a manner
"reasonably likely to come to the attention of intruders."
A-2486-13T3 8
"[T]he State must prove that the defendant was either directly
advised against trespass, or should have been aware that
trespass was prohibited, by the presence of posted signs or
fences near the prohibited area." State ex rel. L.E.W., 239
N.J. Super. 65, 71 (App. Div.), certif. denied, 122 N.J. 144
(1990).
The unrebutted credible testimony supported the Law
Division's finding that defendant walked on railroad property,
posted with an unobstructed "No Trespassing" sign that was
reasonably likely to come to the attention of an intruder.
Thus, the court properly found defendant guilty of this petty
disorderly persons offense beyond a reasonable doubt.
The issues raised regarding this conviction do not merit
discussion in a written opinion. See R. 2:11-3(e)(2). We note,
however, that P.S. was properly prevented from giving her
personal opinion regarding Officer Alasio's character pursuant
to N.J.R.E. 405(a). The witness's responses dealt with her own
experiences with and opinions of Officer Alasio, and not the
officer's reputation for truthfulness in the community, as would
be permitted by N.J.R.E. 608.
With regard to the disorderly persons offense of hindering
detention, the statute requires proof beyond a reasonable doubt
that defendant 1) provided "false information to a law
A-2486-13T3 9
enforcement officer" and 2) did so with the "purpose to hinder"
his detention for a criminal offense. N.J.S.A. 2C:29-3(a)(7).
Lying to a police officer without proof of the required
purpose is not a criminal infraction pursuant to N.J.S.A. 2C:29
3.4 Purpose, with respect to a person's conduct or the result of
his or her conduct, is the "conscious object to engage in
conduct of that nature or to cause such a result." N.J.S.A.
2C:2-2(b)(1). "'Purposeful' or 'with purpose' is the highest
form of mens rea contained in our penal code, and the most
difficult to establish." State v. Duncan, 376 N.J. Super. 253,
262 (App. Div. 2005). The officers testified that, without
defendant's middle name, they had to call headquarters to
determine that defendant had outstanding bench warrants.
Neither officer, however, testified that defendant was informed
about the limited search capabilities of their patrol unit
4 We note that, prior to the State's amendment, defendant was initially charged with the disorderly persons offense of obstructing the administration of law by providing false information to an officer attempting to verify his identity, N.J.S.A. 2C:29-1(a). This statute does not specifically prohibit lying to the police. Rather, it prohibits obstructing justice "by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act." N.J.S.A. 2C:29-1(a). The statute also requires "affirmative interference" of governmental functions. Ibid. In State v. Camillo, 382 N.J. Super. 113, 118 (App. Div. 2005), we specifically required physical interference and rejected the notion that a defendant's refusal to provide information satisfied the "obstruction" element.
A-2486-13T3 10
computer system. Defendant had no demonstrated way of knowing
that with the correct first and last name, date of birth and
home address, the officer would have to call headquarters to
find outstanding warrants. Neither was it demonstrated that
defendant was aware of the rather arcane statute, N.J.S.A.
40A:14-152, allowing an arrest for a disorderly persons offense
only if the officer himself has seen the commission of the
offense. Nor was it clear that defendant was aware of the
active warrants for his arrest for motor vehicle violations.
The State did not produce evidence of defendant's awareness of
any of these factual circumstances.
Defendant was described by the officer as being
"argumentative and hostile." Although certainly not the
recommended attitude when dealing with law enforcement,
defendant's demeanor does furnish an alternate explanation for
his lack of cooperation when asked his middle name. He was
obdurate, but not necessarily to avoid detention for motor
vehicle warrants.
The Law Division judge, whose findings are the only ones we
review, made no finding whatsoever of defendant's purpose in
lying about the existence of his middle name.5 See State v.
The municipal court found merely that defendant's conduct created "the appearance" of a purpose to hinder his detention, (continued)
A-2486-13T3 11
Robertson, 438 N.J. Super. 47, 64 (App. Div. 2014) ("We review
the action of the Law Division, not the municipal court."),
certif. granted, 221 N.J. 287 (2015).

Outcome: Here, the State did not present proof beyond a reasonable doubt that defendant lied about his middle name for the purpose of avoiding detention. The petty disorderly persons conviction of trespassing is affirmed. The disorderly persons conviction of hindering detention is reversed.

Plaintiff's Experts:

Defendant's Experts:

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