On appeal from the Superior Court of New Jersey, Law Division, Union County.
Baime, Conley and Villanueva. The opinion of the court was delivered by Conley, J.A.D.
[268 NJSuper Page 506] Following a jury trial, defendant was convicted of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b) (count two); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count three); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count five), and third-degree
possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(d) (count six). The State's motion for a persistent offender extended term pursuant to N.J.S.A. 2C:44-3(a) was granted. An extended term of fifty years with a parole disqualification of eighteen years was imposed on count one. Counts two and six were merged with count one. A concurrent ten-year custodial term with a five-year parole disqualification was imposed on count three. A consecutive term of eighteen months with a nine-month parole disqualification was imposed on count five. A $90.00 Violent Crime Compensation Board penalty was also imposed.
The convictions arose from the following evidence. On or about 12:00 a.m. on April 20, 1990, Dulcinea Goncalves, a nursing assistant at Elizabeth General Medical Center in Elizabeth New, Jersey, finished her shift and was walking to her car when a man grabbed her hair and jacket, placed a sharp object against her back, and said, "Do not scream or say anything or I kill you." She gave him her pocketbook, and moved her arm to her back where she touched something plastic in the same location as the sharp object. She then was thrown to the ground and beaten.
At the same time, two fellow employees, Walter Hix and William Brady, who were leaving in their car, observed the man run after Goncalves. Worried for her safety, they drove back towards the location where she was last seen. After hearing muffled screams, they exited the car and ran in the direction of the screaming. There, Hix saw a man on top of Goncalves. The man ran away as Hix and Brady approached. Brady gave chase, but was unable to catch the assailant.
As a result of the beating, Goncalves suffered a broken jaw, a fractured orbit bone, a fractured bone in the middle ear, T.M.J. residuals, eight broken teeth, and abrasions and contusions over eighty percent of her body. She remained in the hospital for one week recuperating from her injuries.
Shortly after the attack, Hix found a butcher knife in close proximity to the location where Goncalves was assaulted. The knife was ultimately given to Officer Frank Sebasco of the Elizabeth
Police Department. It was sent to the F.B.I. for fingerprint analysis. That analysis identified the fingerprints as belonging to defendant.
During the police investigation of the assault, Hix looked through several hundred photographs but was unable to identify the perpetrator. Defendant's photograph was not included. A week or two later, he and Goncalves viewed a line up of six men, including defendant. Goncalves was unable to make a positive identification, however, Hix identified defendant as Goncalves's assailant. On April 30, defendant was arrested and charged with the assault. At the time of his arrest, a plastic utility knife was found in his possession. During the trial Goncalves testified that that knife felt like the sharp object that had been held to her back during the assault.
On appeal, defendant contends:
POINT I: THE TRIAL COURT ERRED IN FAILING TO MERGE THE DEFENDANT'S CONVICTION OF UNLAWFUL POSSESSION OF A WEAPON UNDER N.J.S.A. 2C:39-5(d) WITH DEFENDANT'S CONVICTION FOR "ARMED ROBBERY" UNDER N.J.S.A. 2C:15-1. (Not Raised Below).
POINT II: THE TRIAL COURT ERRED IN REFUSING TO PERMIT THE DEFENDANT TO INTRODUCE EVIDENCE OF A PRIOR ASSAULT OCCURRING WITHIN AN HOUR OF THE ASSAULT IN THE INSTANT CASE, WHICH PRESUMABLY WAS COMMITTED BY ANOTHER INDIVIDUAL.
POINT III: THE COURT ERRED IN ADMITTING S-5 (THE UTILITY KNIFE) INTO EVIDENCE WHEN THERE WAS NO TESTIMONY IDENTIFYING IT AS BEING USED IN ANY OF THE CRIMES CHARGED.
POINT IV: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO MOVE TO DISMISS THE INDICTMENT BASED UPON A LACK OF EVIDENCE PRESENTED TO THE GRAND JURY. (Not Raised Below).
POINT V: THE COMBINATION OF ERRORS COMMITTED BY THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We have carefully considered these contentions in light of the transcripts, briefs, and applicable law. We are convinced points III, IV and V are clearly without merit. R. 2:11-3(e)(2). With the exception of the merger issue raised in point I, we find no abuse of
discretion in the sentence and our conscience is not shocked. State v. O'Donnell, 117 N.J. 210, 215-16, 564 A.2d 1202 (1989); State v. Ghertler, 114 N.J. 383, 387-88, 555 A.2d 553 (1989); State v. Dunbar, 108 N.J. 80, 87, 527 A.2d 1346 (1987). We address points I and II, in reverse order.
During the trial, James Torres, a security guard for the hospital, testified that around 11:00 p.m. he had seen a man "hanging around the lobby and scoping out the nurses, you know, coming in and out." Shortly thereafter, at about 11:20 p.m., he was told that someone was being mugged in the parking lot. When he went outside, he observed a woman on the sidewalk, bleeding and took her into the hospital. He later identified a photograph of the individual he had seen hanging around the lobby. That photograph was placed in evidence. It is fairly apparent, though not entirely clear from a reading of the transcript, that the photograph was not of defendant. Moreover, Torres was extensively questioned on his description of the man he had seen around 11:00 p.m. That description is different from the description given by Hix and Goncalves of Goncalves' attacker.
During defense counsel's cross-examination of Detective Mularz, one of the investigating officers, the following occurred:
Q. Now, early in the investigation you spoke to a ...