NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3764-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL RICHARD POWERS,

Defendant-Appellant.

__________________________________________________

Argued September 20, 2016 – Decided

Before Judges Fisher, Ostrer and Leone.

On appeal from the Superior Court of New 

Jersey, Law Division, Middlesex County, 

Municipal Appeal No. 49-2014.

Michael Richard Powers, appellant, argued 

the cause pro se.

Jason M. Boudwin, Assistant Prosecutor, 

argued the cause for respondent (Andrew C. 

Carey, Middlesex County Prosecutor, attorney; 

Mr. Boudwin, of counsel and on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

Defendant was convicted after a trial in municipal court, 

and again upon his appeal to the Law Division, of obstruction, 

which occurs when, as pertinent here, a person "purposely 

APPROVED FOR PUBLICATION

December 14, 2016

APPELLATE DIVISION

December 14, 2016
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obstructs, impairs or prevents . . . a public servant from 

lawfully performing an official function by means of . . . 

physical interference . . . or by means of any independently 

unlawful act." N.J.S.A. 2C:29-1(a). The State claimed that by 

way of "physical interference" and by means of an "independently 

unlawful act" defendant obstructed a state trooper in the 

issuance of a summons for a parking violation at a New Jersey 

Turnpike rest stop. We conclude that defendant could not be 

convicted of obstruction by means of "an independently unlawful 

act" but remand for further findings as to what the judge 

believed constituted "physical interference."

In considering defendant's argument about the sufficiency 

of the evidence,1 we start by recognizing that, on an appeal of a 

municipal conviction, a Law Division judge is "to determine the 

case completely anew on the record made in the municipal court, 

giving due, although not necessarily controlling, regard to the 

opportunity of the magistrate to judge the credibility of the 

 

1 Defendant's attack on the sufficiency of the evidence is posed 

over the course of two points of his brief. Defendant argues in 

his other points that: (1) the municipal judge failed to arraign 

him as required by Rule 7:6-1; (2) the municipal judge erred in 

denying his motion for a judgment of acquittal; (3) the State 

"did not disprove [his] affirmative defense beyond a reasonable 

doubt"; (4) the State failed to provide discovery; and (5) the 

municipal judge improperly reinstated the charges when he had 

previously dismissed them. Because of our disposition of the 

appeal, we need not reach these other points.
3 A-3764-14T2

witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). Our 

review of the factual record is also limited to determining 

whether there is sufficient credible evidence in the record to 

support the Law Division judge's findings. Id. at 161-62; State

v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).

Accordingly, we defer to those findings made in the Law Division 

that are supported by credible evidence, but we owe no deference 

to the legal conclusions drawn from those findings. State v. 

Handy, 206 N.J. 39, 45 (2011).

By way of a written opinion, the Law Division judge found 

that, on November 6, 2013, at a Woodbridge rest stop on the New 

Jersey Turnpike, defendant and another motorist had parked their 

vehicles in a no-parking area. A state trooper came upon these

two unoccupied vehicles and provided a dispatcher with their

license plates to ascertain whether the vehicles were stolen or 

abandoned. As this occurred, defendant exited the building and

approached. The trooper asked for defendant's license and 

explained he was citing defendant's vehicle because it was 

parked in a no-parking area.

The trooper instructed defendant to enter his vehicle; the 

trooper testified this instruction was based on his concern for 

defendant's safety due to the amount of traffic at the rest 

stop. Defendant did not comply. In addition, as the Law Division 
4 A-3764-14T2

judge observed, "defendant's hands repeatedly [went] in and out 

of his pockets," causing the trooper to instruct defendant not 

to do that. When defendant did not comply, the trooper grabbed

defendant's wrist and again instructed him to keep his hands out 

of his pockets. With that, defendant responded, "Why did you 

grab me? Why did you assault me?"; he removed a cellphone from 

his vehicle and dialed 9-1-1, reporting he had just been 

assaulted by an officer. Upon observing defendant recite his 

patrol car numbers during this phone call, the trooper called 

for backup.

The trooper again instructed defendant to get in his 

vehicle. Defendant again refused; he told the trooper he was an 

attorney, knew his rights, and was waiting for "direction from 

someone on the phone." When another trooper arrived, defendant 

was arrested.

In interpreting the significance of these events, the Law 

Division judge described the issue as whether defendant, "in 

failing to comply with the trooper's orders to keep his hands 

out of his pockets and sit in his vehicle for the duration of 

the motor vehicle stop," obstructed the officer.

As noted earlier, N.J.S.A. 2C:29-1(a) declares that a 

person commits the offense of obstruction "if he purposely 

obstructs, impairs . . . or attempts to prevent a public servant 
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from lawfully performing an official function by means of 

flight, intimidation, force, violence, or physical interference 

or obstacle, or by means of any independently unlawful act." The 

Law Division judge concluded that defendant impaired the 

trooper's performance by both "physical interference" and "by 

means of an[] independently unlawful act," ibid., but it is far 

from clear whether he drew those different conclusions from the 

same facts, as suggested in his opinion by these comments:

Although [d]efendant acted without violence, 

his conduct (i.e., standing outside of his 

car and repeatedly putting his hands in his 

pockets) directly opposed [the] [t]rooper['s] instructions and physically interfered with the officer's ability to perform 

his official duties of issuing the summons 

while protecting his own safety and the 

safety of others.

. . . .

Notwithstanding the [c]ourt's finding that 

[d]efendant in this case did in fact 

physically interfere[] with the officer's 

ability to carry out his duties, the [c]ourt 

also finds, supra, that even absent such 

physical interference, [d]efendant is still 

guilty of obstruction on the independent 

basis that [d]efendant committed an unlawful 

act.

In short, the judge may have relied on the same facts – that 

defendant stood outside his vehicle and repeatedly put his hands 

in and took his hands out of his pockets contrary to the 

trooper's directions – to conclude that defendant impeded the 
6 A-3764-14T2

trooper by both physically interfering and by engaging in an 

independently unlawful act.

Nonetheless, it is unclear exactly how the judge believed 

defendant's failure to obey the trooper's commands physically 

interfered with his ability to write or issue a parking ticket. 

Nor is it clear whether the judge believed defendant engaged in 

additional, unspecified conduct that physically interfered with 

the trooper, such as standing in his path or physically 

distracting him. What constitutes obstruction may often turn on 

the precise details of the charged conduct. Absent clearer 

findings, we cannot determine where on the existing continuum of 

similar cases

2 this matter might be found.

Because of this lack of clarity and the absence of specific 

findings to support the judge's conclusion that defendant 

 

2 In State v. Rone, 410 N.J. Super. 589, 596-97 (App. Div. 2009), 

the evidence was sufficient to support an obstruction conviction 

where the defendant arrived at the police stop, parked her 

vehicle between the stopped vehicle and the police vehicle, and 

later briefly stood between the two vehicles. And, in State v. 

Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985), an 

obstruction conviction was affirmed where, during a motor 

vehicle stop, the defendant attempted to move her car contrary 

to an officer's directions. On the other hand, in State v. 

Camillo, 382 N.J. Super. 113, 118 (App. Div. 2005), we held that 

the defendant's refusal to provide requested information "may, 

in fact, have in a real sense obstructed the trooper from 

preparing his report" but that, "in the absence of physical 

interference," he could not be found to have violated N.J.S.A.

2C:29-1(a).
7 A-3764-14T2

physically interfered with the trooper, we remand for further 

findings. 

The Law Division judge, however, was clear about the 

conduct he believed constituted an "independently unlawful act." 

The judge found that defendant's actions were "independently 

unlawful" by force of N.J.S.A. 39:4-57, which provides that 

"[d]rivers of vehicles . . . shall at all times comply with any 

direction, by voice or hand, of a member of a police department" 

when the officer is in the course of "enforcing a provision of 

this chapter." As part of his analysis of this statute, the Law 

Division judge determined the trooper was enforcing "a provision 

of this chapter" when issuing a summons because the vehicle was 

parked in violation of N.J.A.C. 19:9-1.6. We disagree with the 

judge's application of this statute.

First, N.J.S.A. 39:4-57 has no application because 

defendant was not at the time a "driver[] of [a] vehicle[]." He 

was not inside the vehicle and, in fact, the State insists

obstruction occurred in part because defendant refused to enter 

his vehicle at the trooper's direction; that contention

logically defies what it means to be a driver of a vehicle 

whether we apply existing case law3 or the law of physics.4

 

3 The Legislature's definition of "driver" is not helpful in 

resolving the issue presented. N.J.S.A. 39:1-1 (defining 

(continued)
8 A-3764-14T2

Second, the trooper was not in the process of enforcing 

what N.J.S.A. 39:4-57 refers to as "a provision of this 

chapter." The statute refers only to Chapter 39. Because the 

trooper was not citing defendant for a moving violation or any 

provision of Chapter 39, and instead was only in the process of 

writing a ticket because defendant parked in a prohibited area, 

 

(continued)

"[d]river" as "the rider or driver of a horse, bicycle or 

motorcycle or the driver or operator of a motor vehicle, unless 

otherwise specified" in Chapter 39). Questions regarding the 

nature of a defendant's relationship to a vehicle frequently 

arise when the defendant is charged with "operat[ing] a motor 

vehicle" while under the influence, N.J.S.A. 39:4-50(a). But 

"operation" suggests a broader scope of conduct than "driving." 

See State v. Wright, 107 N.J. 488, 491 n.1 (1987) (relying on 

the definition of "operator" in N.J.S.A. 39:1-1, as "a person 

who is in actual physical control of a vehicle"). In Wright, the 

Court found "evidence that defendant was sitting in the driver's 

seat with the headlights on and the motor running seems to be 

sufficient to establish that he was the 'operator' of the car." 

107 N.J. at 491 n.1. In referring to another case decided the 

same day, State v. Mulcahy, 107 N.J. 467 (1987), the Court held 

a defendant was operating a vehicle because he "put [the] key in 

[the] ignition [with the] intent to drive [the] car." 107 N.J.

at 491 n.1 (emphasis added). Wright and Mulcahy, in short, 

recognize that "driving" a car involves the guiding of the 

vehicle while in motion, whereas "operating" involves some 

physical control over the vehicle with an "intent to drive." 

Wright, supra, 107 N.J. at 491 n.1. Either way, until modern 

technology causes a revisiting of what it means to "operate" or 

"drive" a vehicle, our jurisprudence does not view a person in 

possession of car keys but not actually inside the vehicle as a 

"driver."

4 Just as Schrödinger's cat cannot logically be observed as both 

dead and alive at the same time, defendant could not be both 

inside and outside his vehicle at the same time.
9 A-3764-14T2

N.J.S.A. 39:4-57 cannot form a basis for the independently

unlawful act found by the Law Division judge.

Although we agree with the judge that the obstruction 

statute was intended "to prohibit a broad range of behavior 

designed to impede or defeat the lawful operation of 

government," Camillo, supra, 382 N.J. Super. at 116-17 (quoting 

Final Rep. of the N.J. Criminal Law Revision Comm'n (1971), Vol. 

II, at 280), we cannot lose sight of the fact that we are 

construing the elements of a criminal offense. See State v. 

Churchdale Leasing, 115 N.J. 83, 102 (1989) (holding that courts 

are obligated to strictly construe ambiguous criminal and quasicriminal statutes). We therefore reject the invitation to 

loosely interpret what it means to be a "driver[] of [a] 

vehicle[]" or what constitutes a violation of Chapter 39 in 

determining whether the facts found by the Law Division judge 

support a conviction for obstruction.

In concluding defendant was not obligated by N.J.S.A. 39:4-

57 to comply with the trooper's commands that he remove his 

hands from his pockets or enter his own vehicle, we reject the 

argument that defendant engaged in an "independently unlawful 

act" as the basis for his obstruction conviction. And, as noted 

above, because the judge was unclear about the actions of 
10 A-3764-14T2

defendant that he believed constituted "physical interference," 

we remand for further findings.

Remanded. We do not retain jurisdiction.