Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.
Defendant was convicted by a jury of three counts of atrocious assault and battery relating to three individuals (N.J.S.A. 2A:90-1), two counts of obtaining money by false pretense (N.J.S.A. 2A:111-1) and one count of attempt to obtain money by false pretense (N.J.S.A. 2A:111-1 and 2A:85-5). The court imposed a sentence of six consecutive three-month terms in the Essex County Correction Center.
Defendant asserts the following grounds of appeal: (1) Evidence was insufficient to sustain the convictions for atrocious assault and battery; (2) Court erred in its supplemental charge in response to jury's question relating to the elements of the offense of atrocious assault and battery; (3) Prosecutor's comments on opening and summation were inflammatory and denied defendant a fair trial; (4) Ineffective assistance of counsel; and (5) Invasion of Fifth Amendment privilege by questions addressed to the arresting officer which were excluded by the court on objection by defendant.
Defendant's principal ground of appeal is focused upon the validity of the convictions for atrocious assault and battery. We have considered the other grounds of appeal advanced in defendant's brief and find them to be clearly without merit. R. 2:11-3(e)(2). As a consequence this opinion will deal with the only meritorious issue, namely, that relating to the charges of atrocious assault and battery.
The evidence reflects a bizarre set of facts. Defendant engaged in a common practice of approaching the victims either at their homes or on the street and falsely representing himself to be a physician and/or representative of Blue Cross or Beth Israel Hospital. He convinced these individuals that they had to submit to certain tests and treatment either for cancer or sickle cell anemia and in some
instances he requested and obtained a fee for his services. The convictions for atrocious assault and battery related to three victims: Mary Jackson, Gregory Carter and Eddie Rodgers.
Mary Jackson testified that on August 21, 1974 defendant came to her apartment and introduced himself as a representative of Beth Israel Hospital. He stated that he had a report on her from the hospital and was there to take some tests for cancer. She consented to the tests only after he threatened to get a warrant to force her to cooperate. He then removed bottles, needles and other items from his brief case and proceeded to insert a needle in a vein in each arm, like taking a "blood test." This caused some minor bleeding. He advised her that she had cancer of the blood cells.
Defendant requested that Mrs. Jackson undress from the waist down and when she complied, he inserted "a silver x-ray machine" (identified as a flashlight) into her vagina. He then proffered his professional advice that she would require weekly treatments for eight months at $10 a week, and that the treatment would include "a lot of sex." Mrs. Jackson stated that she had no money at the time whereupon defendant said he would return two days later. The next day Mrs. Jackson went to Beth Israel Hospital and to her personal physician. Subsequently she saw defendant on the street and called the police.
Gregory Carter was on the street on August 27, 1974 when defendant approached him and said he was giving tests for sickle cell anemia. He presented documents identifying himself as a representative of Blue Cross-Blue Shield. Carter consented, whereupon defendant secured a needle wrapped in a paper and inserted it in the victim's arm. There was no bleeding or other ill-effects.
Eddie Rodgers, an 11-year-old boy, also testified that defendant approached him and represented that he was testing everyone for sickle cell anemia. A piece of rubber was placed
around the boy's arm and a pin or needle was inserted in his finger causing ...