State of New Jersey v. Meliton Alvarez

NOT FOR PUBLICATION WITHOUT THE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-2487-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELITON ALVAREZ,

Defendant-Appellant.

_________________________

Submitted March 11, 2025 – Decided April 11, 2025

Before Judges Gooden Brown and Vanek.

On appeal from the Superior Court of New Jersey, Law

Division, Atlantic County, Indictment No. 21-03-0236.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Leon Grauer, Assistant Deputy Public

Defender, and Laura B. Lasota, Deputy Public

Defender II, of counsel and on the briefs).

Matthew J. Platkin, Attorney General, attorney for

respondent (Kaili E. Matthews, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of third-degree resisting

arrest, fourth-degree endangering the welfare of another, and disorderly persons

harassment. After a sequential bench trial, defendant was convicted of petty

disorderly persons disorderly conduct and acquitted of disorderly persons

obstructing the administration of law. Defendant received an aggregate one-

year suspended sentence. The charges stemmed from an incident at the Hard

Rock Hotel and Casino during which defendant became obstreperous when

security and New Jersey State Police officers confronted his friend for failing to

follow COVID-19 protocols in place at the time.

On appeal, defendant raises the following points for our consideration:

POINT I

BECAUSE ANY ALLEGED FORCE OR VIOLENCE

OCCURRED ONLY AFTER [DEFENDANT] HAD

ALREADY BEEN ARRESTED AND WAS

AWAITING PROCESSING AT THE POLICE

SATELLITE OFFICE, THE STATE FAILED TO

PROVE ALL THE ELEMENTS OF RESISTING

ARREST, REQUIRING REVERSAL.

POINT II

DESPITE [DEFENDANT] REQUESTING THE

INSTRUCTION AND A RATIONAL BASIS FOR IT

IN THE RECORD, THE COURT FAILED TO

CHARGE THE JURY ON OBSTRUCTION AS A

LESSER-RELATED OFFENSE OF RESISTING

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ARREST, REQUIRING REVERSAL OF

[DEFENDANT'S] CONVICTION ON COUNT TWO.

Based on the record and the applicable legal principles, we affirm.

I.

We glean these facts from the trial record. At about 10:00 p.m. on October

10, 2020, Carl Lowe, an assistant security manager at the Hard Rock Casino

(Casino), was dispatched to Pit 5 on a report of disorderly conduct by a patron

who was being disruptive and not abiding by the Casino's mask policy. The

Casino had recently reopened and had implemented a strict mask mandate due

to the COVID-19 pandemic.

Upon arrival, Lowe observed a man with "his mask down," "yelling" and

"causing a scene," while security officers attempted to remove him from "the

casino floor." Lowe recalled that the man, later identified as Albin Griffin-Brea,

was accompanied by another patron, later identified as defendant. In addition

to pulling his mask down, Griffin-Brea was reportedly "licking his hand" and

"touching the [gaming] chips." According to Lowe, although both men

"appeared to be intoxicated," defendant's initial demeanor was "calm." In fact,

Lowe said, at first, defendant was trying to "calm [Griffin-Brea] down."

However, Lowe testified that after "approximately" fifteen to twenty minutes,

Griffin-Brea still refused to calm down or leave the Casino even after being

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3

warned that New Jersey State Police would be contacted. As a result, the New

Jersey State Police Casino Operations Unit was called. The Unit was

responsible for policing "the casino floor in all . . . nine [Atlantic City] casinos."

Four plain-clothes State Police detectives responded and identified

themselves as police both "verbally" and with "identification" in the form of "a

billfold wallet" that said "State Police." Upon their arrival, the atmosphere

shifted. Lowe testified that Griffin-Brea "actually calmed down a little bit" but

defendant became "upset" and "disorderly" and "started flipping out, kind of

making a scene and yelling." Detective Sergeant Mark Devine was one of the

responding detectives. Devine described defendant as "agitated, angry for some

reason," and "definitely . . . intoxicated." Devine recalled that defendant was

"yelling," "boisterous," "flailing his arms," and "pointing at people."

According to Devine, he did not "understand what [defendant] was

saying" during the encounter because defendant was speaking Spanish , and

Devine had received "minimal training when it comes to speaking Spanish." The

police "talked to . . . Griffin-Brea, and asked him to tell . . . defendant[] that

[they were] with the State Police and try to calm him down." However,

defendant refused to calm down. He became even "more agitated and . . . angry,"

and was "putting his hands" in the detectives' faces and "touching them." After

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4

several minutes of trying to "de-escalate the situation," defendant and Griffin-

Brea were "escorted" to a New Jersey State Police satellite office about forty or

fifty yards away from Pit 5, and the decision was made to charge defendant with

disorderly conduct for "creating a disturbance on the casino floor" and

"disrupting casino operations."

While enroute to the office, "defendant was still upset, still irate and

disorderly." When they arrived at the office, defendant "attempted to leave,"

but Devine told him to stop because he was detained at that point. Defendant

disregarded the order and proceeded toward the exit door where Devine was

standing. When Devine blocked defendant's path and "pushed him back,"

defendant "tried to punch" Devine but missed. Devine was able to subdue

defendant by pushing him "down to the ground" in an attempt to handcuff him.

Defendant resisted by repeatedly "tuck[ing]" his hands "underneath" his body.

Eventually, defendant was handcuffed by three detectives and placed on a bench.

During the struggle on the ground, defendant hit his head and was bleeding

from "his face, . . . mouth and nose area." After the detectives handcuffed him,

defendant "spit blood and saliva" onto Devine's pants and into "the face" of

Detective Andrew Sciarretta. Sciarretta testified that as defendant attempted to

spit at him a second time, he "jab[bed]" defendant in his right eye to reposition

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5

his face. Because defendant "continued to spit," a spit hood was placed on

defendant "to capture . . . th[e] spit" and avoid "expos[ing] anybody to saliva or

blood-borne pathogens." Emergency Medical Services was also contacted to

transport defendant to the hospital for treatment of his injuries.

During Lowe's and Devine's testimony, the jury watched portions of two

videos of the incident captured on the Casino's surveillance system. Both videos

depicted interactions between defendant and security and State Police officers

on the casino floor. Neither video captured the events that took place in the

satellite office and neither recording had audio.

Defendant was subsequently charged in an Atlantic County indictment

with third-degree aggravated assault on a law enforcement officer, N.J.S.A.

2C:12-1(b)(5)(a) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(3)(a) (count two); and fourth-degree endangering the welfare of another,

N.J.S.A. 2C:24-7.1(a)(2) (count three). Spitting blood and saliva into

Sciarretta's face formed the evidential basis for the aggravated assault and

endangering counts. A complaint/summons charged defendant with disorderly

persons obstructing the administration of law, N.J.S.A. 2C:29-1(a), and petty

disorderly persons disorderly conduct, N.J.S.A. 2C:33-2(a)(1).

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6

The jury found defendant guilty of petty disorderly persons harassment,

2C:33-4(c), as a lesser included offense of aggravated assault (count one); third-

degree resisting arrest (count two); and fourth-degree endangerment (count

three). In a sequential bench trial, the trial judge found defendant guilty of

disorderly conduct but acquitted defendant of obstruction. Thereafter, the judge

granted defendant's post-trial motion for a judgment of acquittal on the

endangerment charge, R. 3:18-2, but denied defendant's motion for a new trial,

R. 3:20-1. In so doing, the judge rejected defendant's contention that the court

erred by not instructing the jury on disorderly persons obstruction as a lesser-

included offense of resisting arrest, but agreed that there was an insufficient

factual basis in the record from which a jury could conclude the State established

"a substantial risk of serious bodily injury" to Sciarretta beyond a reasonable

doubt to support the endangering charge. The judge imposed a suspended

sentence and entered a conforming judgment of conviction on April 5, 2023.

This appeal followed.

II.

In Point I, for the first time on appeal, defendant argues he is entitled to a

judgment of acquittal on the resisting arrest charge because the State failed to

prove all the elements of resisting arrest beyond a reasonable doubt. He asserts

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7

the State failed to establish that an arrest was being effected during the physical

altercation between Devine and defendant in the State Police satellite office .

Rather, he contends that defendant had already been arrested on the casino floor

before being escorted to the satellite office for processing and there was no break

in custody.

When a party does not properly preserve an issue for appeal, as here,1 we

may nonetheless consider whether it rises to the level of plain error under Rule

2:10-2. However, plain error "is a 'high bar,' requiring reversal only where the

possibility of an injustice is 'real' and 'sufficient to raise a reasonable doubt as

to whether the error led the jury to a result it otherwise might not have reached.'"

State v. Alessi, 240 N.J. 501, 527 (2020) (citation omitted) (first quoting State

v. Santamaria, 236 N.J. 390, 404 (2019); and then quoting State v. Macon, 57

N.J. 325, 336 (1971)). "The 'high standard' used in plain error analysis 'provides

a strong incentive for counsel to interpose a timely objection, enabling the trial

court to forestall or correct a potential error.'" Santamaria, 236 N.J. at 404

(quoting State v. Bueso, 225 N.J. 193, 203 (2016)).

1

Defendant did not raise this issue either in his post-trial motion for judgment

of acquittal or his motion for a new trial.

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8

"The mere possibility of an unjust result is not enough." State v.

Funderburg, 225 N.J. 66, 79 (2016). "In the context of a jury trial, the possibility

must be 'sufficient to raise a reasonable doubt as to whether the error led the jury

to a result it otherwise might not have reached.'" State v. G.E.P., 243 N.J. 362,

389-90 (2020) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); see also State

v. Dunbrack, 245 N.J. 531, 544 (2021) ("The plain error standard requires a

twofold determination: (1) whether there was error; and (2) whether that error

was 'clearly capable of producing an unjust result . . . .'" (quoting R. 2:10-2)).

"To determine whether an alleged error rises to the level of plain error, it 'must

be evaluated "in light of the overall strength of the State's case."'" State v. Clark,

251 N.J. 266, 287 (2022) (quoting State v. Sanchez-Medina, 231 N.J. 452, 468

(2018)).

Defendant also faces a formidable bar in Rule 2:10-1. Under Rule 2:10-

1, "the issue of whether a jury verdict was against the weight of the evidence

shall not be cognizable on appeal unless a motion for a new trial on that ground

was made in the trial court." Absent such a motion, a challenge to the verdict

on appeal should be disregarded under the rule. Pressler & Verniero, Current

N.J. Court Rules, cmt. 2 on R. 2:10-1 (2025). However, this mandate may be

"relax[ed] based on considerations of substantial justice." Ibid. In that case,

A-2487-22

9

"[t]he test on a motion for a new trial is whether there was a manifest denial of

justice." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div. 1985). Still, "a

jury verdict will not be set aside unless it clearly and convincingly appears that

there was a miscarriage of justice under the law." Ibid.

In considering whether a jury verdict was against the weight of the

evidence,

[w]e must sift through the evidence "to determine

whether any trier of fact could rationally have found

beyond a reasonable doubt that the essential elements

of the crime were present." State v. Carter, 91 N.J. 86,

96 (1982). But an appellate court may not overturn the

verdict "merely because it might have found otherwise

upon the same evidence." Johnson, 203 N.J. Super. at

134. Appellate intervention is warranted only to

correct an "injustice resulting from a plain and obvious

failure of the jury to perform its function." Ibid.

[State v. Smith, 262 N.J. Super. 487, 512 (App. Div.

1993) (citations reformatted).]

On the other hand, a motion for a judgment of acquittal

is controlled by a different standard than a motion for a

new trial. On a motion for a judgment of acquittal, the

standard is whether the evidence, viewed in its entirety,

be it direct or circumstantial, and giving the State the

benefit of all its favorable testimony as well as all of

the favorable inferences which reasonably could be

drawn therefrom, is sufficient to enable a jury to find

that the State's charge has been established beyond a

reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59

A-2487-22

10

(1967); State v. Kluber, 130 N.J. Super. 336, 341-42

(App. Div. 1974).

[Johnson, 203 N.J. Super. at 133-34 (citations

reformatted).]

Here, the judge was not afforded the opportunity to decide either motion

to preserve the issue on appeal. We also reject defendant's contention that his

comment in closing argument that Devine's testimony proved that defendant's

arrest occurred on the casino floor suffices to preserve the issue for appeal.

Nevertheless, we are satisfied reversal is not warranted under the plain error

standard, R. 2:10-2, because there was sufficient credible evidence in the record

to support the jury's guilty verdict to third-degree resisting arrest beyond a

reasonable doubt. See State v. Pickett, 241 N.J. Super. 259, 265-66 (App. Div.

1990) (stating that when a defendant fails to move for judgment of acquittal or

a new trial under Rule 3:18-2 or Rule 3:20-1, "th[e] issue is raised improperly"

for the first time on appeal pursuant to Rule 2:10-1 but may be addressed "[i]n

the interest of justice . . . pursuant to the plain error rule" (citing R. 2:10-2));

see also State v. Soto, 340 N.J. Super. 47, 73 (App. Div. 2001) (explaining that

"we may consider the merits" of a weight of the evidence argument under the

plain error standard "in the interest of justice even though defendant did not

A-2487-22

11

move for a new trial"), disapproved of on other grounds, State v. Dalziel, 182

N.J. 494, 504 (2005).

A person is guilty of the basic offense of resisting arrest "if he purposely

prevents or attempts to prevent a law enforcement officer from effecting an

arrest." N.J.S.A. 2C:29-2(a)(1). The statute

defines three grades of resisting arrest. The basic

offense of resisting arrest, that is, purposely preventing

or attempting to prevent a law enforcement officer from

effecting an arrest, is a disorderly persons offense. It is

raised to a fourth-degree crime if the prevention or

attempted prevention of the arrest is accomplished by

flight. Whether or not flight is involved, however, if

the resistance is accompanied by physical force or

violence against the officer, the crime is of the third

degree.

[State v. Simms, 369 N.J. Super. 466, 470 (App. Div.

2004).]

See also Model Jury Charges (Criminal), "Resisting Arrest – Flight Not Alleged

(N.J.S.A. 2C:29-2a)" (rev. May 7, 2007).

The crux of defendant's argument is that the detectives had already

completed the arrest when defendant was in the satellite office, so he could not

have been resisting at that time. But defendant defines "arrest" too narrowly.

"There is no absolute test as to when an arrest occurs. The action of the police

officer must be evaluated in the context of the circumstances in which it takes

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place." State v. Bell, 89 N.J. Super. 437, 443 (App. Div. 1965). "Indeed, even

the use of formal language of arrest is not conclusive on this issue" and "[n]ot

every detention is an arrest." Ibid.; see also Strelecki v. Coan, 97 N.J. Super.

279, 283 (App. Div. 1967) ("Officers are not required to make any formal

declaration of arrest or apply manual force in order to 'arrest' a person. An arrest

may be accomplished by any act that indicates an intention to take the person

into custody and subject him to the control and will of the person making the

arrest.").

Here, the evidence at trial revealed that defendant was irate, defiant, and

disorderly, refusing to comply with instructions from State Police and Casino

security officers. Lowe and Devine both testified that the detectives identified

themselves as police to defendant upon arrival. Devine testified that police took

defendant to the satellite office mere yards away from Pit 5 with the intention

of charging him with disorderly conduct. Lowe confirmed that defendant was

not free to leave the satellite office because he was detained at that time.

Regardless, within seconds of entering the office, defendant tried to leave by

plowing through and taking a swing at Devine when Devine blocked his path.

Defendant also physically resisted the detectives' attempts to subdue and

handcuff him by writhing around on the ground and spitting blood and saliva at

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the detectives. As such, the evidence clearly showed that the detectives were

effecting an arrest when defendant resisted by physical force or violence. See

State v. Lawrence, 142 N.J. Super. 208, 211, 214 (App. Div. 1976) (upholding

resisting arrest conviction for assaultive conduct occurring during and after

defendant was placed under arrest for drunk driving).

III.

In Point II, defendant argues the judge erred in denying his request to

charge obstruction "as a lesser-related offense" of resisting arrest. He maintains

that "there was a rational basis for the requested charge" and that "the judge's

refusal to provide it violated [defendant's] due process and fair trial rights ."

During the charge conference, defendant requested an obstruction charge

as a "lesser-included offense" of resisting arrest. The judge denied the request,

explaining:

[T]he facts and the evidence that the jury heard were

relative to the actual resisting arrest. The evidence

indicated that . . . defendant was going to be charged.

The investigation had been complete. It was thereafter

that he . . . resisted arrest. He did not obstruct the actual

investigation.

While I understand the wording of the

obstruction statute, the [c]ourt[ is] going to deny that

request since the resisting arrest appears to be

consistent with respect to the [disorderly persons]

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charge that . . . based upon the facts . . . the jury can

find.

And if they find, again, the additional element as

to the . . . use of physical force or violence, they can

answer that question[,] and that would be, of course, the

third[-]degree charge.

In the final instructions, the judge instructed the jury on the disorderly

persons offense of resisting arrest, as a lesser-included offense, as well as

resisting arrest with physical force or violence, a third-degree crime. The jury

convicted defendant of the third-degree charge and did not reach the lesser-

included offense. After the jury verdict, in his motion for a new trial, defense

counsel reprised his argument that obstruction should have been charged as a

lesser-included offense of resisting arrest. The judge rejected the argument,

expounding that "[o]bstruction is not a lesser[-]included offense of resisting

arrest" and "there was no rational basis for the jury to convict defendant of

obstruction but acquit defendant of resisting arrest."

The judge added:

The [c]ourt further notes that the jury found . . .

defendant guilty of [c]ount [t]wo, [r]esisting [a]rrest,

and found that . . . defendant used or threatened to use

physical force or violence against a law enforcement

officer. As such, the jury [was] instructed not to

consider lesser[-]included offenses unless [defendant

was] found not guilty of the charged count. The jury

charge states: "you are not to render a verdict on these

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15

[lesser-included] offenses or answer the question on the

verdict sheet unless you find that the State has failed to

meet its burden with regard to the offense(s) in the

indictment." Here, the jury found . . . defendant guilty

of the charged offense. Therefore, [it] would have not

been able to consider any lesser[-]included offenses.

[(Emphasis omitted).]

Relatedly, following the bench trial, in acquitting defendant of

obstruction, the judge explained:

The obstruction . . . charge under [N.J.S.A.]

2C:29-1(a) is a disorderly persons offense. It is, in the

[c]ourt's mind, broader than the resisting charge.

The obstruction charge deals with various things

that result in various behaviors that may result in

obstructing or impairing or preventing law enforcement

from executing their official duties. Resisting can be

one of those obstructions.

However, in this particular case, the [c]ourt notes

that the jury has already found that . . . defendant was

already in what I[ will] say [was] the back of the house

in the office with law enforcement in which he was then

being processed. There was testimony that he was

going to be charged. So clearly they had already . . .

done their investigation and were now in the midst of

charging him.

Thereafter, he did attempt to leave. He failed to

adhere to the commands of the law enforcement

officers at that time. . . . He then used force to prevent

the officers from arresting him and the [c]ourt

delineates arresting, physically arresting, his body as

opposed to the actual law enforcement duty of

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processing the actual [s]ummons and [c]omplaint in

this particular matter.

So the [c]ourt finds that that is different with

respect to his actions[,] and the [c]ourt finds that . . .

the State has not met its burden.

"[A]n offense is considered a lesser-included offense 'where the proof

required to establish a greater offense is also sufficient to establish every

element of a lesser offense' and 'where two offenses are the same but a lesser

degree of culpability is required to establish the lesser offense.'" State v. Bell,

241 N.J. 552, 561-62 (2020) (quoting State v. Thomas, 187 N.J. 119, 129

(2006)). A "court shall not charge the jury with respect to an included offense

unless there is a rational basis for a verdict convicting the defendant of the

included offense." N.J.S.A. 2C:1-8(e). "Determining 'whether an included

offense charge is appropriate requires (1) that the requested charge satisfy the

definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that

there be a rational basis in the evidence to support a charge on that included

offense.'" Bell, 241 N.J. at 562 (footnote omitted) (quoting State v. Cassady,

198 N.J. 165, 178 (2009)). The rational basis test for charging a lesser-included

offense "imposes a low threshold." State v. Crisantos, 102 N.J. 265, 278 (1986).

"In contrast, related offenses are those that 'share a common factual

ground, but not a commonality in statutory elements, with the crimes charged in

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the indictment.'" State v. Maloney, 216 N.J. 91, 107 (2013) (quoting Thomas,

187 N.J. at 132); see Thomas, 187 N.J. at 130 ("[W]hether offenses are related

is not a function of a comparison of statutory elements. Instead, the focus is

whether the offense charged and the related offense share a common factual

nucleus."). "'A court may instruct on a related offense when "the defendant

requests or consents to the related offense charge, and there is a rational basis

in the evidence to sustain the related offense."'" State v. Moorer, 448 N.J. Super.

94, 105 (App. Div. 2016) (quoting Maloney, 216 N.J. at 108).

Absent such a rational basis, giving an instruction on a

related offense is improper because

a trial court cannot charge a jury on any

offense requested by the defendant or

suggested by the evidence. A trial court

should not "scour the statutes to determine

if there are some uncharged offenses of

which the defendant may be guilty. The

prosecutor has the primary charging

responsibility[.]"

[Id. at 105-06 (alteration in original) (quoting

Thomas, 187 N.J. at 133).]

When a defendant makes a request for a lesser-related offense instruction,

and the State objects, the court should evaluate the facts presented at trial to

ensure there is a rational basis for the jury to reject the greater charge and instead

convict on the lesser charge. See N.J.S.A. 2C:1-8(e). The inquiry becomes

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whether the jury would have a rational basis for accepting the proposed theory

of a case, not whether the jury is likely to accept the defendant's theory. State

v. Mejia, 141 N.J. 475, 489 (1995).

As previously stated, N.J.S.A. 2C:29-2(a)(1) initially commands that,

except as provided elsewhere in the statute, "a person is guilty of a disorderly

persons offense if he purposely prevents or attempts to prevent a law

enforcement officer from effecting an arrest." It then states that, except as

otherwise indicated, "a person is guilty of a crime of the fourth degree if [the

person], by flight, purposely prevents or attempts to prevent a law enforcement

officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2). The statute thereafter

indicates that it is an offense of the third degree if a person does that which is

proscribed in subsections (1) or (2), and "if the person: (a) [u]ses or threatens

to use physical force or violence against the law enforcement officer or another;

or (b) [u]ses any other means to create a substantial risk of causing physical

injury to the public servant or another." N.J.S.A. 2C:29-2(a)(3).

In contrast, under the obstructing administration of law statute,

[a] person commits an offense if [the person]

purposely obstructs, impairs or perverts the

administration of law or other governmental function or

prevents or attempts to prevent a public servant from

lawfully performing an official function by means of

flight, intimidation, force, violence, or physical

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interference or obstacle, or by means of any

independently unlawful act. This section does not

apply to failure to perform a legal duty other than an

official duty, or any other means of avoiding

compliance with law without affirmative interference

with governmental functions.

[N.J.S.A. 2C:29-1(a).]

Notwithstanding his arguments to the trial judge, on appeal, defendant

essentially acknowledges that obstruction is not a lesser-included offense of

resisting arrest but asserts that obstruction should have been charged as a lesser-

related offense of resisting arrest. We disagree and are satisfied that in the

circumstances of this case, there is no reversible error. First, "[w]hat constitutes

obstruction may often turn on the precise details of the charged conduct. " State

v. Powers, 448 N.J. Super. 69, 74 (App. Div. 2016). Here, the offenses of

resisting arrest and obstruction are not related as they require different factual

predicates.

The obstruction statute

qualifies what conduct is prohibited—including

obstruction of the administration of law—by reference

to how the activity is carried out—including by means

of "physical interference or obstacle." By the plain and

ordinary meaning of the terms of the statute, criminal

liability for obstruction stems only from certain modes

of behavior.

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To violate N.J.S.A. 2C:29-1(a), a person must not

only "purposely obstruct[], impair[] or pervert[] the

administration of law" but must do so through one of

the specifically enumerated acts in the statute, through

"physical interference or obstacle," or through an

"independently unlawful act." In its second sentence,

the statute specifically distinguishes the above

behaviors from failures to perform non-official duties

and other conduct.

[State v. Fede, 237 N.J. 138, 148 (2019) (alterations in

original).]

The "affirmative acts" under the obstruction statute differ from and are

much broader than those in the resisting arrest statute. To sustain an obstruction

charge, a law enforcement officer does not have to be effecting an arrest , and

the defendant does not have to resist or attempt to resist an arrest , as occurred

here. See N.J.S.A. 2C:29-2(a). Instead, "the obstruction must be carried out in

a manner described in the statute: 'by means of flight, intimidation, force,

violence, or physical interference or obstacle, or by means of any independently

unlawful act.'" State v. Camillo, 382 N.J. Super. 113, 118 (App. Div. 2005)

(quoting N.J.S.A. 2C:29-1). Thus, to find defendant guilty of obstruction would

require different evidence from what was presented during the trial.

Second, there was no rational basis to charge the jury with obstruction as

a lesser-related offense of resisting as the evidence did not "present adequate

reason for the jury to acquit . . . defendant on the greater charge and to convict

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on the lesser." State v. Brent, 137 N.J. 107, 118-19 (1994). Instead, the

evidence presented adequate reason for the exact opposite to occur. Although

the judge instructed the jury on the lesser-included offense of resisting arrest as

a disorderly persons offense, the jury did not even reach the lesser-included

offense and convicted defendant on the greater third-degree resisting arrest

charge. Thus, defendant failed to show that a reasonable jury would acquit him

of the greater charge and convict him on the lesser. In addition, the fact that the

judge subsequently acquitted defendant of the obstruction charge further

demonstrates that there was no rational basis to charge the jury with obstruction

as a lesser-related offense of resisting arrest.

Affirmed.

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