Store manager using cell to re-record shoplifter permitted State v. Perdomo

 STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
ISABELA PERDOMO,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-0942-22

Submitted December 11, 2023 – Decided December 18, 2023

Before Judges Sabatino and Chase.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 22-05.

PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

After a municipal court trial, defendant Isabela Perdomo was convicted of shoplifting, N.J.S.A. 2C:20-11(b)(2). On de novo review, the Law Division upheld her conviction. Defendant now appeals, raising several issues. We affirm.

The State's evidence showed that on May 9, 2019, defendant entered a Yankee Candle retail store with two shopping bags. According to the testimony of the assistant store manager, the bags appeared to be collapsed and empty. Defendant went to a shelf and removed four candles, priced at $30 each, and placed them in a wire basket. She rearranged the remaining candles on the shelf to fill in the empty space in the front row. She carried the four candles to an unattended sales register and began placing them in her shopping bags. She then pulled two other candles off a different shelf and returned to the register.

Defendant presented a sales receipt to the sales associate at the register indicating she was exchanging candles she had previously purchased. Before the transaction was completed, a uniformed security officer entered the store. Defendant briskly walked out of the store with the four candles and without making a payment.

The State contended that defendant was pretending to make a product exchange when she actually brought no merchandise into the store. Most of

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defendant's actions within the store were filmed on two surveillance videos taken from two different angles. Because the videos are automatically deleted after about thirty days, the assistant store manager filmed them on her cell phone in order to preserve the recorded evidence. The videos show defendant taking four candles off the shelf and walking out of the store with them when the security guard appeared.1

The municipal judge found that the State met its burden of proof beyond a reasonable doubt. Among other things, the municipal judge found the assistant store manager to be "a very credible, believable witness." The judge expressly rejected defendant's claim that she had brought four candles into the store to conduct a "jar-to-jar" exchange.

The judge sentenced defendant to ten days of community service. He also required her to pay the store $120 in restitution, plus various court costs and fees.

1 We have reviewed the videos as part of our consideration of the evidence in the record.

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On de novo review, the Law Division upheld the municipal judge's findings. Defendant then filed the present appeal with this court. In her brief, she presents the following points for our consideration:2

POINT I

THERE IS NOT SUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD TO UPHOLD THE LAW DIVISION FINDINGS

In considering defendant's arguments, we are guided by well-established standards. We have before us a context with concurrent findings of guilt by both the municipal judge who tried the case and the Law Division judge. In such contexts, appellate courts "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." State v. Robertson, 228 N.J. 138, 148 (2017) (citation omitted). Appellate review is limited to whether the Law Division’s conclusions "could reasonably have been reached on sufficientcredible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964); see also State v. Zingis, 471 N.J. Super. 590, 601 (App. Div.), certif.

      

2

Within defendant's brief she makes the following sub-points: (1) the video

evidence was not adequately authenticated; (2) the manager’s testimony

prejudicially described defendant as "a person of interest;" and (3) the State's proofs were insufficient to establish her guilt of shoplifting beyond a reasonable

doubt.

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granted, 251 N.J. 502 (2022). In particular, we generally defer to the trier of fact's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

 

We likewise must be deferential to the trier of fact's evidentiary rulings. "A judge's decision to admit or exclude evidence is 'entitled to deference absent

a showing of an abuse of discretion, i.e., [that] there has been a clear error of judgment." State v. Brown, 463 N.J. Super. 33, 51 (App. Div. 2020) (quoting

Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)).

That said, the tribunal's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995)).

Applying these principles, we reject each of defendant's arguments for reversal. We briefly discuss them in turn.

First, we discern no merit in defendant's claim that the surveillance videos were inadequately authenticated. The assistant store manager provided an ample foundation for those recordings, sufficient to meet the rational basis threshold of N.J.R.E. 901. See also State v. Hannah, 448 N.J. Super. 78, 88-90 (App. Div. 2016) (noting the lenient non-onerous predicate for authentication under

    

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N.J.R.E. 901). The manager had personal knowledge of many of the events that were recorded on the videos, and, in fact, at one point appears on camera conversing with defendant. The manager had familiarity with the store's routine practices in creating and storing the videos. She provided a sufficient justification for re-recording the videos on her own cell phone camera to avoid their routine erasure after thirty days. We upheld similar re-recording in Brown, 463 N.J. Super. at 51. We reject defendant's argument that the manager needed to have observed first-hand all of the events depicted on the video in order to authenticate them.

Second, we detect no reversible error in the manager's testimony explaining that the store personnel were paying close attention to defendant's actions as a "person of interest." We acknowledge that the term suggests that defendant may have engaged in shoplifting or other bad acts in the past. See N.J.R.E. 404(a) (generally precluding character proof to show a defendant's propensity to act in a certain manner); see also State v. Brunson, 132 N.J. 377, 384 (1993). Even so, we do not regard the witness's use of the phrase in this non-jury case to be "clearly capable" of producing an unjust result. R. 2:10-2. The municipal judge's assessment of guilt was manifestly based on the evidence, including the inculpatory videos and the manager's testimony, rather than a

  

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propensity-based bias that defendant had shoplifted before.
Third and finally, the State's proofs, viewing them in a light most

favorable to the prosecution, were ample to establish defendant's guilt beyond a reasonable doubt. The elements of shoplifting under N.J.S.A. 2C:20-11(b)(2) were sufficiently proven. The judge found the store manager's narrative credible, and the videos essentially caught defendant red-handed.

To the extent we have not mentioned them, any other points raised on appeal lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

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Appellate Division must follow fact finding by lower courts State v. Molina

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
JOHN MOLINA,

Defendant-Appellant. _______________________

Argued December 5, 2023 – Decided December 12, 2023

Before Judges Haas and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. MA-21-13.

PER CURIAM  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-2474-21

Following a trial de novo on the record in the Law Division, the trial judge found defendant John Molina guilty of the petty disorderly offense of disorderly conduct under N.J.S.A. 2C:33-2(a)(1), and ordered him to pay a $300 fine and appropriate costs and surcharges. We affirm.

At approximately 10:44 p.m. on December 10, 2019, Officer Morrison of the Bound Brook Police Department responded to a bar in response to a call. When Morrison arrived, the bar owner told him that defendant had refused to pay his bar tab. According to Morrison, defendant smelled of alcohol, appeared intoxicated, was unsteady, had slurred speech, and his eyes were bloodshot and watery. Morrison told defendant "that he needed to pay [the tab] or he'd be charged with theft."

As the conversation continued, defendant pulled out a cell phone and "put it directly smack up to [Morrison's] face . . . about an inch from his face directly in front of his eyes and nose." Morrison testified that the phone impeded his vision and his investigation, and could have been used as a weapon given defendant's intoxicated state. Morrison attempted to move the phone away from his face, and defendant smacked Morrison's hand.

At that point, Morrison "took [defendant] immediately right to the ground" in order to protect himself and nearby bar patrons. Defendant refused to place

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his arms behind his back so he could be handcuffed. Morrison and his partner, Officer Jimenez, used a "normal arm bar" to work defendant's hands behind his back in order to secure him.

The officers escorted defendant out of the bar. Morrison stated that defendant was "continually being agitated. He's yelling. He's refusing to get in the back of my car. He's putting his . . . feet on the side of the [patrol] car refusing to get in." By that time, a third officer had arrived in the parking lot and that officer assisted Morrison and Jimenez by helping to pull defendant into the back of the car.

Morrison later served a summons and complaint on defendant charging him with violating N.J.S.A. 2C:33-2(a). In pertinent part, that statute states:

A person is guilty of a petty disorderly offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he

1. (1)  Engages in fighting or threatening, or in violent or tumultuous behavior; or

2. (2)  Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

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The complaint asserted that defendant violated N.J.S.A. 2C:33-2(a) "specifically by yelling and refusing officer's orders to leave the area."1

At the municipal court hearing, defendant denied the allegations against him. He admitted there was a dispute over the amount of the bar tab, but claimed the police simply asked him to go outside to discuss and he complied. Morrison told defendant he had to pay the tab or he would be arrested. Defendant testified that he and Morrison began walking back inside the bar, but Morrison "pull[ed] on [defendant's] back." Defendant then "grabbed [his] phone to start record[ing]" and Morrison "took [him] to the floor with his arm on [defendant's] chest." Therefore, defendant asserted he "got arrested without reason."

Defendant's friend, who was drinking at the bar with defendant that night, testified on his behalf. He stated he saw defendant arguing with Morrison. When defendant began recording the officer, the witness stated the police threw defendant to the floor and then took him to the patrol car.

1

Morrison also charged defendant with violating Bound Brook Municipal Ordinance 3-7.5, which prohibits an individual from interfering with, obstructing, or hindering a police officer in the performance of his or her duty.

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After considering all of the evidence submitted during the trial,2 the municipal court judge determined that Morrison was credible and defendant was not. Based upon defendant's conduct on the night in question, the judge found that he violated N.J.S.A. 2C:33-2(a) and the Bound Brook municipal ordinance.

Following his de novo review in the Law Division, the trial judge rendered a thoughtful written decision, accepted the municipal court judge's credibility findings, and found defendant guilty of disorderly conduct under N.J.S.A. 2C:33-2(a).3 The judge stated:

2

This court finds that the defendant's behavior and actions constitute the offense of disorderly conduct. A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience,

After the municipal court proceedings had concluded, defendant sent a subpoena to the Bound Brook Police Department "for certain records that were referred to during trial," but not produced at that proceeding. Specifically, defendant sought a copy of any policies or directives setting forth standard operating procedures for the use of video or audio recording devices by police officer during incidents like the one involved in this case. The Department's attorney advised defendant's attorney that the subpoena was improper. Defendant sought to supplement the record before the Law Division with these policies, but never supplied them to the court. Rule 3:23-8(a)(2) clearly states that "a trial de novo" is to be conducted "on the record below." In addition, the Law Division "may permit the record to be supplemented for the limited purpose of correcting a legal error in the proceedings below." Ibid. Because that exception did not apply in this case, the trial judge correctly denied defendant's motion to supplement the record.

3 The judge dismissed the municipal ordinance violation charge after finding that the ordinance was preempted by N.J.S.A. 2C:33-2(a)(1).

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annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or threatening, or violent or tumultuous behavior, or (2) creates a hazardous or physically dangerous condition by any act that serves no legitimate purpose of the actor. N.J.S.A. 2C:33-2[(a)]. The court notes that although defendant was intoxicated at the time, his level of voluntary intoxication did not rise to a prostration of faculties that negates a necessary mental state (i.e. purposeful conduct). See N.J.S.A. 2C:2-8; State v. Cameron, 104 N.J. 42 (1986).

Here, defendant acted purposely. He did what he intended to do. He became agitated and aggressive when the police arrived and confronted him about the bar tab. He was intoxicated. This led to the defendant placing his cell phone in the officer's face, swatting his hand, and struggling against the arrest. Defendant continued his aggressive and violent behavior out to the street as the officers tried to get him into the patrol car. He would not enter the patrol car voluntarily and acted out by kicking and pushing his feet.

To be clear, the court does not find that the activity of the defendant in recording the officer and placing his cell phone in the officer's face to be disorderly conduct because it is not charged as such in the complaint. The court finds defendant guilty of disorderly conduct based on his post-arrest behavior in yelling, refusing to enter the patrol vehicle, and violently using his feet to push back against the police as they tried to get him into the vehicle. While the complaint is not a model of clarity, the allegations are sufficient to place defendant on notice of the substance of the disorderly conduct charge against him.

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In a subsequent written amplification of his decision, the trial judge also addressed defendant's argument, raised for the first time in the trial de novo, "that the municipal [court] judge had an intolerable conflict of interest because at some point in the past the municipal court judge served as counsel for . . . Branchburg Township [and its] Police Department while sitting as a municipal court judge." Defendant supplied a copy of a brief the judge had filed in that matter in his role as the Township's and the Department's attorney in support of a motion to dismiss several counts of a complaint a police officer employed by the Township had filed under New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1 to -50. Even though that matter did not involve defendant, Bound Brook, the Bound Brook Police Department, or any of the officers involved in the present matter, defendant argued that the judge's representation of any police department in his capacity as private attorney created the appearance of a conflict which barred him from presiding over any case concerning any police officers.

Citing Rule 3:23-8(a), the trial judge found that because defendant failed to raise this contention in the first instance before the municipal court, either at the original trial or in a motion for post-conviction relief, he was barred from doing so at the trial de novo. This appeal followed.

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On appeal, defendant raises the following contentions:

1. A Judgment Of Acquittal Must Be Entered On [Defendant's] Conviction For Disorderly Conduct Since The Complaint Failed To Provide The Essential/Proper Facts Supporting The Arrest For Disorderly Conduct And Thus Failed To Provide [Defendant] With Proper Notice Depriving Him Of Due Process And Exposing A Very Obvious And Exceptional Showing Of Error.

2. The Law Division, By Convicting [Defendant] Of Disorderly Conduct Based Upon Post-Arrest Conduct Acknowledges That [Defendant's] Arrest For Disorderly Conduct Was False and/or Unlawful, And Consequently Created A New Charge Against [Defendant] Without Proper Notice Thereby Depriving [Defendant] Of His Due Process Rights Thereby Exposing A Very Obvious and Exceptional Showing Of Error Requiring A Judgment Of Acquittal On The Disorderly Conduct Charge.

3. [Defendant's] Conviction For Disorderly Conduct Must Be Dismissed As There Is No Evidence [Defendant] Acted With Purpose As The Law Division Judge Specifically Found [Defendant] Guilty Of Disorderly Conduct Based Upon Post Arrest Conduct, Yet Found [Defendant] Acted Purposeful Based Upon Pre[- ]Arrest Conduct, Again, Defying The Record That Clearly Indicates [Defendant] Was Not Acting Disorderly Pre-Arrest.

4. The Law Division Applied The Wrong Standard Of Review Regarding Credibility Assessments By The Municipal Court Judge.

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5. Even If The Court Is Not Permitted To Expand The Record On A Trial De Novo Pursuant [To] R. 3:23-8(a)(2), That Rule, Along With The Relaxation Rule 1:1-2, Allows The Law Division Judge To Reverse And Remand The Matter For A New Trial.

   1. [The Municipal Court Judge's] Representation Of The Branchburg Police Department While He Was A Municipal Judge, And Prior To Hearing This Trial Wherein He Convicted Defendant, Requires This Court To Either: 1) Enter a Judgment Of Acquittal On The Disorderly Conduct Charge, Or 2) Remand And Order A New Trial Before A Different Judge.

   2. Supreme Court's Concerns Regarding Municipal Courts.

   3. Evidence Of [The Municipal Court Judge's] Judicial Bias Exceedingly In Favor Of Law Enforcement Requiring His Credibility Findings To Be Disregarded.

6. In the Alternative, The Court Should: 1) Enter A Judgment Of Acquittal On The Disorderly Conduct Charge Based Upon The Discovery Violation By The Bound Brook Police Department For Refusing To Comply With A Subpoena For Discovery Regarding Policies Relative To Audio/Video Evidence; Or 2), Order A New Trial And Remand The Matter To Be Heard Before A New Judge And Compel The Bound Brook Police Department To Produce The Policies Demanded By [Defendant] Prior To Trial To Be Used For Impeachment Purposes.

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We have reviewed these contentions in light of the record and the applicable law and conclude they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in the trial judge's written opinion and his subsequent written amplification. We add the following brief comments.

When the Law Division conducts a trial de novo on the record developed in the municipal court, "[o]ur review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Because the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)).

Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "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." State v. Reece, 222 N.J. 154, 166 (2015) (quoting Locurto, 157 N.J. at 474).

    

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Having considered defendant's contentions concerning the sufficiency of the evidence in light of the record and the applicable legal principles, we discern no basis to disturb the findings and conclusions contained in the trial court's opinion. His analysis of all of the issues, including his deference to the municipal court judge's credibility findings and his procedural rulings during the de novo proceedings, was comprehensive and correct.

Affirmed.

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Conviction for violating governor order reverse where person engaged in political activity opposing Murphy Orders State v. French A-3621-21

 STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
ALBERT FRENCH,

Defendant-Appellant. ___________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3621-21

Argued November 1, 2023 – Decided December 13, 2023

Before Judges Susswein and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal. No. 2-A-2021.

PER CURIAM 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.

Defendant Albert French appeals two convictions for violating Executive Order 107 (EO 107)1 and one conviction for violating N.J.S.A. 39:4-342 following municipal court trials and a subsequent de novo review by the Law Division. The convictions arise from April 7 and May 6, 2020 incidents when defendant was stopped by police officers after they observed him walking on the side of a highway in Clinton Township making lewd gestures and holding up signs toward passing motorists during the COVID-19 pandemic.

After careful review of the record and prevailing law, we affirm defendant's conviction for walking with traffic in violation of N.J.S.A. 39:4-34 and reverse both convictions for violations of EO 107.

I.
We discern the following material facts in the record on appeal. The State

asserts that defendant was charged by summons with the following offenses

1

2

EO 107 was signed by Governor Philip D. Murphy on March 21, 2020 in response to the COVID-19 pandemic. The Order implemented measures to address the public health emergency. Exec. Order No. 107 (Mar. 21, 2020), 52 N.J.R. 554(a) (Apr. 6, 2020).

The Law Division refers to this count as walking with traffic in violation of N.J.S.A. 39:4-34.

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stemming from the April 7, 2020 incident: two counts of disorderly conduct in violation of N.J.S.A. 2C:33-2A(2) arising from defendant's alleged shaking of his genitalia from outside his clothing and raising his middle finger toward the police, two counts of disorderly conduct in violation of local ordinance 198- 10(c), one count of violating EO 107, and one count of violating N.J.S.A. 39:4- 34 for failing to cross within a crosswalk. The summons for the violation of EO 107 pursuant to N.J.S.A. A:9-49(h), marked SC-002985, does not contain any factual basis for the charge.3

With regard to the May 6, 2020 incident, defendant was issued summons S-2020-104, which included one charge for disorderly conduct in violation of N.J.S.A. 2C:33-2(a)(2),4 and violations of EO 107 through N.J.S.A. A:9-49(a) and (g) for walking along the highway holding up signs to passing motorists stating "PHUCK," "#THIN BLUE," and "Slow Down Police Ahead" in non- compliance with the gubernatorial mandate to stay home that was in effect at the time because of the ongoing COVID-19 pandemic.

3

The only summons in the record relating to the April 7 incident alleges a violation of EO 107. The summons charging a violation of N.J.S.A. 39:4-34 is not in the record before us.

4
incident.

This charge is based upon a factual predicate similar to the April 7, 2020

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All of the charges were tried in municipal court through two proceedings held on March 25, 2021.

II.
The State called police officer William Musacchio5 of the Clinton

Township Police Department to testify as to the April 7, 2020 incident. Musacchio was in a marked police vehicle located in a median cut out of Route 22 when he observed defendant walking westbound in the eastbound lanes carrying a posterboard.

Musacchio was only able to read the first word of the sign that read "p-h- u-c-k," which the officer took as a misspelling of a curse word. As instructed by his superiors, Musacchio contacted the prosecutor's office to discuss a potential violation of EO 107 after watching defendant walk across the highway in an area with no crosswalk. While he was on the telephone with the prosecutor's office, Musacchio observed defendant "grab his genitalia from outside of his clothing" and "shake his genitalia in an up and downward motion" towards the motorists on the highway and then towards him. He then saw defendant "raise his hand and gesture the middle finger to the motoring public."

5 We note that the Law Division decision refers to Officer Musacchio as Officer Masacchio. We use the spelling of the officer's name from the police investigation report.

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Musacchio decided it would be appropriate to take defendant into custody to enforce EO 107 and multiple disorderly conduct charges. Musacchio and an assisting officer found defendant to be irate and emotional.

When the officers informed defendant they were detaining him, he responded that he was "essential." Musacchio understood this to mean defendant was asserting he was an essential worker. Musacchio did not believe defendant but he did not ask defendant whether he was commuting to or from work. During Musacchio's testimony on direct examination, the municipal court judge was presented with video, recorded from the patrol car's dashboard, of the incident on which defendant can be heard asking the officers: "Are you saying I'm not an essential worker?"6

Musacchio testified that although defendant was holding up a posterboard sign at the time of the interaction, he did not ask defendant if he was protesting. The officer also testified that if defendant had not raised the posterboard sign, he would have just asked him if he was okay and where he was heading.

The officers told defendant not to leave the scene, but he walked away from them despite the instruction. The officers decided not to pursue him and

6 The video is not part of the record on this appeal. The transcript is inconsistent as to whether defendant used the word "employee" rather than "worker" during this inquiry. This distinction is not essential to our analysis.

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instead mailed the summonses for failure to use a crosswalk, violation of EO 107 and various disorderly conduct charges. No other witnesses testified at the trial.

After summations, the municipal court issued an oral decision finding it was undisputed that the April 7, 2020 interaction between Musacchio and defendant occurred while EO 107 was in effect. Further, the court found the State had met its burden of establishing beyond a reasonable doubt that defendant violated EO 107 while on the side of the highway. The court noted that regardless of whether or not the sign defendant was carrying was political, he should not have been on the roadway in light of the restriction imposed under EO 107. Accordingly, the municipal court convicted defendant of violating EO 107 and imposed fines and court costs.7

III.
The municipal court next tried the charges stemming from the May 6,

2020 incident. The State called Sergeant Jeffrey Glennon as the sole witness. Glennon testified that on May 6 around 4:21 p.m., he responded to a report of

7 The court also convicted defendant of disorderly conduct, but that conviction was vacated by the Law Division judge and is not part of this appeal. Defendant was found not guilty of failing to walk in a crosswalk.

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an individual walking in the roadway. When he arrived at the scene, he saw an individual, later identified as defendant, walking with a sign.

When Glennon approached, he recognized defendant from prior police interactions. Defendant began yelling that he was an essential employee and pointing at the business logo on his sweatshirt. As Glennon attempted to ask defendant some questions, defendant continued to yell he was an essential employee and he had the right to protest. Glennon observed defendant holding a posterboard sign stating in part "PHUCK," "#THIN BLUE," and "Slow Down Police Ahead." Defendant further told Glennon as he was protesting that he "didn't want to be part of [the sergeant's] investigation anymore," he demanded to be freed from detention, and he continued screaming at the officer.

Glennon testified that two additional officers then reported to the scene, and defendant told them he was working. The officers told defendant he could leave the scene, and defendant walked away backwards while raising his middle finger toward them. The officers observed defendant turn around and begin walking in the same direction as traffic. Glennon testified: "When he was walking backwards he's facing the proper way, you have to face traffic. But then once he turned around, he wasn't facing traffic, he was walking with traffic."

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Eventually, defendant got into a vehicle and drove away. Glennon subsequently confirmed with defendant's employer that he had worked in the afternoon and left his job about twenty minutes before the police interaction. Glennon testified that after consulting with the prosecutor's office he mailed defendant summonses for violation of EO 107, disorderly conduct and walking in the roadway.

After summations from counsel, the municipal court issued an oral decision. The court found it was beyond dispute that the May 6, 2020 incident occurred while EO 107 was in effect. The municipal court found that defendant had not presented evidence to support his argument that he was returning from work at the time of the encounter with police. The municipal court convicted defendant of violating EO 107 and the statute prohibiting walking in the same direction as traffic. Defendant was not convicted of the remaining charges.

IV.
Defendant appealed to the Law Division, contending that the State's

proofs at both trials were insufficient to sustain the convictions. Defendant further argued that he did not violate EO 107 since he was engaged in activities permitted under EO 107 including walking, traveling home from work, and participating in political speech.

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On June 15, 2022, the Law Division reviewed the municipal court convictions de novo. The court deferred to the credibility determinations made by the municipal court judge. See State v. Kuropchak, 221 N.J. 368, 382 (2015). The Law Division upheld the two convictions for violating EO 107 on April 7 and May 6, 2020, and the conviction of walking with traffic.

The Law Division's written decision states because "[t]here is little case law or precedent concerning convictions based on violations" of EO 107, "the court must rely primarily on the plain text of the order, as well as the text of the applicable sections (g) and (h)" of N.J.S.A. A:9-49. The Law Division ruled defendant had "an explicit obligation to cooperate with law enforcement in connection with any allowed activities. He did not do so, and in not doing so, he violated a rule adopted and promulgated by the [G]overnor."

Although the Law Division found defendant was walking outdoors alone

and protesting on the side of the road, it concluded he was not "traditional recreational activity" and stated:

[Defendant] was protesting on the side of the road—he was engaged in a high-conflict activity with a much greater chance of resulting in interpersonal activity than jogging around one's neighborhood or taking a solitary walk. . .

engaged in

....

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The court finds that while [defendant] was outside, he was not engaged in the sort of outdoor recreational activity contemplated by a broad interpretation of [EO] 107 and in consideration of the purpose behind that order.

The Law Division also concluded the officers' testimony and the presence of the signs bearing profanity "weigh[ed] against the possibility that [defendant] was returning from work." The Law Division judge stated:

[E]ven if he was returning from work, there can be no doubt that under the order, essential employees could leave their residences to go to work, and to go home from work, not to leave work, engage in a disallowed activity for a period of time and then continue on the way home.

The Law Division judge made the factual finding that defendant was protesting on April 7, 2020 and concluded this could be a form of political activity. However, the judge stated:

[W]hen read with the purpose of the act in mind, it is clear that individuals were to leave their residences, perform the . . . political purpose of their leaving in as efficient and socially distanced a manner as possible, and then go home. [Voting, for example, would] fall under this type of exception. Instead, [defendant] engaged in a public high-conflict activity of an indefinite [duration,] an activity which unlike voting could have waited until the threat of emergency had subsided.

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As to the May 6, 2020 police interaction, the court concluded EO 107 "allows for individuals to engage in outdoor recreational activity while following best social distancing practices." However, the Law Division found defendant was not engaged in such outdoor recreational activity because "[h]e was in an unusual place. He was standing on the immediate shoulder of the road, very close to where cars would be driving, during a time of emergency."

The Law Division concluded defendant "demonstrated an utter unwillingness to cooperate with the officer[s] or even to engage in reasoned conversation with them. He was hostile and combative towards the officers who were carrying out their lawful duties during a time of emergency." Further, the Law Division found that defendant was not engaged in political activity and concluded defendant was not returning home from work. The Law Division stated "walking backwards while holding a sign is simply not a part of commuting to and from work in an efficient and socially distant manner."

The Law Division also upheld the conviction under N.J.S.A. 39:4-34 for improper walking in the roadway on May 6, 2020. The court found defendant walked on the far right of the highway when the statute requires an individual to walk on the "extreme left." The Law Division found Glennon's testimony that

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he observed defendant turn around and walk in the direction of traffic was undisputed.

On July 28, 2022, defendant appealed from the Law Division's order. V.

Defendant raises the following contentions on appeal:

POINT I:
DEFENDANT'S CONDUCT WAS NOT A VIOLATION OF EXECUTIVE ORDER 107

POINT II:
THE SUPERIOR COURT'S INTERPRETATION OF EO 107 RENDERS THE EXECUTIVE ORDER UNCONSTITUTIONALLY VAGUE UNDER THE FOURTEENTH AMENDMENT

A. The Superior Court's Interpretation of EO 107 Renders the Executive Order Unconstitutionally Vague Under the Fourteenth Amendment.

B. As Applied, EO 107 and Disaster Control Act Impinge on Defendant's First Amendment Right to Protest.

C. As Applied, EO 107 and Disaster Control Act Unconstitutionally Infringed on Defendant's Right to Freedom of Movement and Fourth Amendment Rights Because the State Lacked Reasonable Suspicion or Probable Cause to Stop and Detain Defendant.

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D. Defendant's Speech After Being Stopped and Detained by the Police is Protected Speech that Cannot Be Used as a Basis upon Which to Convict Him.

POINT III:
AS APPLIED, THE EXECUTIVE ORDER AND DISASTER CONTROL ACT IMPINGE ON [DEFENDANT'S] FIRST AMENDMENT RIGHT TO PROTEST

POINT IV:
AS APPLIED, THE EXECUTIVE ORDER AND DISASTER CONTROL ACT UNCONSTITUTIONALLY INFRINGED ON [DEFENDANT'S] RIGHT TO FREEDOM OF MOVEMENT AND FOURTH AMENDMENT RIGHTS BECAUSE THE STATE LACKED REASONABLE SUSPICION OR PROBABLE CAUSE TO STOP AND DETAIN [DEFENDANT]

POINT V:
THE COURT IMPERMISSIBLY SHIFTED THE BURDEN TO DEFENDANT TO PROVE HE WAS OUT FOR A REASON PERMITTED UNDER EO 107

POINT VI:
[DEFENDANT'S] SPEECH AFTER BEING STOPPED AND DETAINED BY THE POLICE IS PROTECTED SPEECH THAT CANNOT BE USED A BASIS UPON WHICH TO CONVICT HIM

POINT VII:
THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SHOW THAT DEFENDANT WALKED THE WRONG WAY ON THE HIGHWAY AND THE COURT ERRED IN ITS INTERPRETATION OF THE STATUTE AT ISSUE

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VI.
Appellate review "focuses on whether there is 'sufficient credible

evidence . . . in the record' to support the trial court's findings." State v. Robertson, 228 N.J. 138, 148 (2017) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "[A]ppellate 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." State v. Locurto, 157 N.J. 463, 474 (1999).

Legal determinations by the Law Division and municipal court, however, are considered de novo. Robertson, 228 N.J. at 148. We review the interpretation and application of gubernatorial executive orders de novo. Talmadge Vill. LLC v. Wilson, 468 N.J. Super. 514, 517 (App. Div. 2021) (instructing the courts to "interpret the meaning of a valid executive order de novo").

VII.
We first consider defendant's convictions for violating EO 107 on April 7

and May 6, 2020. Defendant argues that at the time of both incidents he was engaged in conduct that is exempted under EO 107, including walking, political activity, and commuting from his job.

     

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"The Governor is authorized to issue executive orders, [as] 'a well- accepted tool of gubernatorial action.'" Kravitz v. Murphy, 468 N.J. Super. 592, 610 (App. Div. 2021) (quoting Perth Amboy Bd. of Educ. v. Christie, 413 N.J. Super. 590, 598-99 (App. Div. 2010)). On March 21, 2020, Governor Murphy issued EO 107 "in response to [the] health-related emergenc[y] caused by the spread of the COVID-19 coronavirus." JWC Fitness, LLC v. Murphy, 469 N.J. Super. 414, 419 (App. Div. 2021).

In interpreting the meaning and scope of EO 107, we consider the "plain language, and if we find the language ambiguous we consider the legislative history and purpose of the enactments." State v. Toussaint, 440 N.J. Super. 526, 530 (App. Div. 2015); see also Rozenblit v. Lyles, 245 N.J. 105, 121 (2021). "To that end, we first consider the statutory language. Where words are not given specified meanings within the statute, we afford those words their ordinary meanings, viewed in context of the legislation as a whole." JWC Fitness, LLC, 469 N.J. Super. at 425 (internal citation omitted); see N.J.S.A. 1:1-1. "In this way, we must construe the statute sensibly and consistent with the objectives that the Legislature sought to achieve." Nicholas v. Mynster, 213 N.J. 463, 480 (2013).

      

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8

EO 107 states in part as follows:8

2. All New Jersey residents shall remain home or at their place of residence unless they are . . . 5) reporting to, or performing, their job; 6) walking, running, operating a wheelchair, or engaging in outdoor activities with immediate family members, caretakers, household members, or romantic partners while following best social distancing practices with other individuals, including staying six feet apart; 7) leaving the home for an educational, religious, or political reason . . . .

3. When in public, individuals must practice social distancing and stay six feet apart whenever practicable, excluding immediate family members, caretakers, household members, or romantic partners.

....

24. It shall be the duty of every person or entity in this State or doing business in this State and of the members of the governing body and every official, employee, or agent of every political subdivision in this State and of each member of all other governmental bodies, agencies, and authorities in this State of any nature whatsoever, to cooperate fully in all matters concerning this Executive Order.

[Exec. Order No. 107 (Mar. 21, 2020), 52 N.J.R. 554(a) (Apr. 6, 2020).]

On June 9, 2020, paragraph two of EO 107, as relevant to this matter, was rescinded by the issuance of paragraph eleven in EO 153. Exec. Order No. 153 (June 9, 2020), 52 N.J.R. 1303(a) (July 6, 2020).

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N.J.S.A. A:9-49(g) and (h) require cooperation with emergency orders and deem the failure to do so a disorderly persons offense.

At an April 4, 2020 press briefing, the Governor was asked specifically about the ability to protest under EO 107. He responded: "[D]on't protest as a group. We respect folks who want to protest, find some other way to do it virtually online, whatever it might be." (Gov. Phil Murphy, Transcript: Coronavirus Briefing Media (April 7, 2020), https://nj.gov/governor/news/news/562020/approved/20200407f.shtml).

The Governor further clarified his position regarding protests under the relevant executive orders at a press briefing on April 29, 2020:

People have a right to protest. I wish they would do it from home . . . . The thing that really bothered me was they were congregating, and they weren't wearing masks for the most part and they were on top of each other and that's what led to the [violation of the executive order] . . . . I wish folks would protest from home and virtually, but if they're going to protest we're [going to] be tough on enforcing the . . . no congregation.

[Gov. Phil Murphy, Transcript: Coronavirus Briefing Media (April 29, 2020), https://nj.gov/governor/news/news/562020/approved/2 0200429d.shtml.]

During oral argument on this appeal, we asked the parties if any subsequent guidance on prosecuting violations of EO 107 had been issued. The

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State submitted a letter pursuant to Rule 2:6-11(d)(1) acknowledging a June 17, 2020 memorandum from the State of New Jersey Attorney General entitled "Guidance Regarding Municipal Prosecutors' Discretion in Prosecuting COVID- 19 Related Offenses" (the Attorney General Memorandum). Att'y Gen., Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting COVID- 19 Related Offenses (June 17, 2020).

The Attorney General Memorandum provides instruction on how and when to prosecute COVID-19-related charges in municipal courts. Among other provisions, the Memorandum directs:

Unlike most complaints filed in municipal court, COVID-19 related charges are only pursued after a review of available facts by the COVID-19 Prosecutor and with the COVID-19 Prosecutor's authorization to proceed with the charge. Indeed, without approval by the COVID-19 Prosecutor, COVID-19 related charges should not be filed.

....

To ensure that all outdoor political activities and outdoor worship services receive uniform treatment, I am directing prosecutors to move to dismiss any Executive Order violations previously filed for such conduct, despite the initial probable cause determination or appropriateness of the violation at the time it was issued. Based on data maintained by the Division of Criminal Justice, there were five individuals who received summonses for organizing outdoor political protests and religious services in

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violation of Orders prior to the issuance of Executive Order No. 152;[9] no individual protestors or worshipers have been cited to date.

[Att'y Gen., Guidance Regarding Municipal Prosecutors' Discretion in Prosecuting COVID-19 Related Offenses (June 17, 2020).]

Notably, the Attorney General Memorandum directs prosecutors to dismiss any pending charges for "outdoor political activities." The Law Division made the factual finding that at the time of both incidents defendant was protesting. We agree with the Law Division's conclusion that defendant was protesting by holding up posterboards expressing speech for motorists to see.

We further conclude that defendant's protesting constitutes political activity for the purposes of EO 107 and the Attorney General Memorandum. "Political expression obviously includes any fair comment on any matter of public interest, whether or not the subject of an election campaign, whether or not embarrassing to the local governing body, and whether or not irritating to one's neighbors." State v. Miller, 162 N.J. Super. 333, 338 (App. Div. 1978), aff'd 83 N.J. 402 (1980); see Ruthenbeck v. First Crim. Jud. Dist. Court, 7 N.J.

9 EO 152 issued new guidance on group gatherings but did not supersede the portions of EO 107 relevant to this case. Exec. Order. No. 152 (June 9, 2020), 52 N.J.R. 1301(a) (July 6, 2020).

   

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Misc. 969, 969-70 (1929) (in which our Supreme Court vacated a conviction where the defendant said "you big muttonhead, do you think you are a czar around here?" in a loud and offensive tone to a police officer); see also Miller, 83 N.J. at 411 (finding that when the "message on the defendant's sign concerned a matter of public interest . . . it is political speech and occupies a preferred position in our system of constitutionally-protected interests").

Based upon our careful review of the facts in the record and prevailing law, we conclude defendant's conduct on both April 7 and May 6, 2020 constitutes "outdoor political activity" and that the charges for violation of EO 107 were required to be dismissed under the Attorney General Memorandum. See Fraternal Ord. of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J. 75, 100-01 (2020) (finding that Attorney General directives require prosecutors and all other law enforcement officers to "cooperate with, and aid, the Attorney General" and while "[i]ndividual law enforcement agencies have some discretion in how to fulfill" certain mandates, the policies put forth by the Attorney General "are mandatory"). It is undisputed that on April 7 and May 6, 2020, defendant had one or more posterboard signs he was displaying to passing traffic.

  

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The officers' testified that both posters contained the word "phuck" and at least one sign contained a message regarding law enforcement. We conclude that defendant's display of the signs to passing motorists on both occasions was a form of political expression, constituting "outdoor political activity," exempted from EO 107 and precluded from prosecution under the Attorney General Memorandum and the First Amendment.

The State argues that "neither the Clinton Township Police Department nor the Hunterdon County Prosecutor’s Office violated the [Attorney General] Guideline during their investigation and prosecution of defendant’s violations of Executive Order No. 107." We disagree. The EO 107-related charges stemming from the April 7 and May 6, 2020 events were pending at the time the Attorney General Memorandum was issued on June 17, 2020. The Attorney General Memorandum mandated dismissal of all then-pending charges for violations of EO 107 based upon outdoor political activities.

The State also argues that the Law Division properly found that defendant's non-compliance with the responding officers is a separate violation of EO 107 which is not subject to the enumerated exceptions. Thus, the State contends the conviction should be sustained on non-compliance grounds that are not covered under the Attorney General Memorandum. But, in a criminal

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matter, the State cannot change the theory of the prosecution on appeal. The investigation report filed by Musacchio as to the April 7, 2020 incident clearly evidences the assistant prosecutor authorized charging defendant with violating EO 107 before an officer approached defendant. Accordingly, the decision to charge defendant under EO 107 was made before defendant became non- compliant.

Nor did the State submit at prior proceedings that defendant was guilty of an EO 107 violation because he was non-compliant with officers' instructions. In any event, we conclude that on both occasions, defendant's uncooperative behavior was inextricably intertwined with his outdoor political activity. We therefore conclude the Attorney General Memorandum applies and the charges against defendant for violation of EO 107 should have been dismissed.

We instruct the trial court on remand to vacate the convictions for the two EO 107 violations consistent with this opinion. We need not address defendant's constitutional objections to EO 107 since all of the violations stemming from it are vacated. See State in Int. of A.R., 234 N.J. 82, 97 (2018) ("We have often stated, '[c]ourts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation.'" (alteration in original) (quoting Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006)).

 

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VIII.
We turn next to defendant's argument there is insufficient evidence to

sustain a conviction for walking in the direction of traffic under N.J.S.A. 39:4- 34. That statute provides: "On all highways where there are no sidewalks or paths provided for pedestrian use, pedestrians shall, when practicable, walk only on the extreme left side of the roadway or its shoulder facing approaching traffic."

Defendant argues there was no evidence in the record as to when he turned so that he was no longer facing oncoming traffic and, therefore, the statutory violation was not established beyond a reasonable doubt. Conversely, the State contends the court's credibility and factual findings should not be disturbed because they are supported by the record.

We defer to the Law Division's factual findings as to Officer Glennon's testimony. Glennon testified that he observed defendant walking with traffic in violation of the statute. Although no video evidence capturing this portion of the encounter was introduced, the municipal court judge accredited Glennon's testimony, finding:

Clearly, while the defendant was walking backwards at one point, he should have been on the other side of the roadway. When he turned around, he was in violation of the pedestrian statute. Again, this is not a [S]upreme

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[C]ourt matter, but the court finds the defendant guilty of that particular violation. . . .

The Law Division upheld the municipal court's conclusion, holding that: "Given the municipal court's credibility findings, the deference that they deserve, and based on the totality of the evidence this court finds that the appellant is guilty of walking with traffic."

Defendant argues that there is "significant confusion" surrounding this conviction and contends he was never charged with a violation of walking with traffic and the record does not include a summons for violating N.J.S.A. 39:4- 34. Defendant did not argue in prior proceedings that he did not receive notice of the N.J.S.A. 39:4-34 charge and thus failed to preserve that argument for purposes of this appeal.10 R. 2:10-2.

Similarly, defendant did not argue at the municipal court trials that both pedestrian stops violated the Fourth Amendment and that police also violated his fundamental right to travel. Defendant never made a motion to suppress evidence pursuant to Rule 7:5-2, which requires that "[a]ll motions to suppress shall be heard before the start of the trial."

10 Additionally, the record on defendant's appeal is incomplete as to the totality of the summonses and the specific charges levied against defendant.

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To the extent we have not addressed any of defendant's remaining arguments, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed in part, reversed in part, and remanded for an entry of judgment consistent with this opinion. We do not retain jurisdiction.

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