On appeal from the Superior Court, Law Division, Passaic County.
Before Judges J. H. Coleman, Dreier and Wefing
The opinion of the court was delivered by
Defendant was indicted for first degree kidnapping (N.J.S.A. 2C:13-1b(1) or (2)); two counts of third degree assault (N.J.S.A. 2C:12-1b(2)); third degree terroristic threats (N.J.S.A. 2C:12-3 a); second degree burglary (N.J.S.A. 2C:18-2b(1) or (2)); fourth degree theft (N.J.S.A. 2C:20-3); and fourth degree contempt of court for disobeying a judicial restraining order (N.J.S.A. 2C:29-9(b)).
Following a jury trial, defendant was found guilty of false imprisonment as a lesser included offense of kidnapping; one count of simple assault as a lesser included offense of third degree assault; and acquitted on the remaining third degree assault count. He was convicted of all the remaining charges. For burglary, the trial court sentenced him to a term of ten years, and specified he would be ineligible for parole for five years. For terroristic threats, the trial court sentenced him to a consecutive term of five years and specified he would be ineligible for parole for two and one-half years. The trial court imposed a concurrent eighteen-month term for the theft conviction, merged the false imprisonment and simple assault into the burglary conviction and the contempt of court into the terroristic threats conviction. Defendant's overall term was thus fifteen years, with a seven and one-half year parole disqualifier.
Defendant's convictions rested upon the events of July 27, 1990. He arrived at the home of Theresa Hussein, with whom he had an eight-month old daughter, Patricia. Theresa Hussein was not home and defendant demanded her thirteen year old daughter, Desiree Suffy, admit him so he could retrieve money which allegedly belonged to him. The girl called her mother for instructions, and then refused him entry. Defendant forced his way into the locked apartment, grabbed the baby, retreated to the bathroom and locked the two of them inside. The police and Ms. Hussein were both summoned. Defendant held them off for approximately three hours before he eventually relented and surrendered both the baby and himself. The baby was unharmed, but Ms. Hussein received a cut which required five stitches. Defendant's conviction for simple assault dealt with his actions toward his infant daughter; he was acquitted of the assault charges which dealt with his actions toward Ms. Hussein.
Defendant and Ms. Hussein had lived together for some period of time and the incident of July 27, 1990 was not the first. On February 6, 1990, they resided at a different apartment. At lunch time on that date, Ms. Hussein called home from her employment and spoke with defendant. She heard Patricia crying in the background and from her phone conversation, concluded defendant had been drinking. She left work to attend to Patricia and when she arrived home, discovered the defendant drunk and the two-month old infant lying across their bed, soaking wet from a sodden diaper. Defendant refused to let her take the baby and she left the apartment to summon the police. Defendant locked himself in the bedroom with the baby and would not let the police enter. When they kicked the door in, he threatened to slam the child against the wall and throw her on the floor.
Eventually, defendant let Ms. Hussein feed Patricia although he would not let her hold the baby. Ms. Hussein, however, grabbed the infant and the police quickly subdued and subsequently arrested defendant. This incident lasted approximately ninety minutes.
Following that incident, Ms. Hussein sought and obtained a restraining order under the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.). Defendant's action in going to Ms. Hussein's apartment on July 22, 1990 was the foundation for the charge of contempt of court.
On this appeal, defendant raises the following issues:
THE TRIAL COURT'S INSTRUCTION TO THE JURY THAT A CONVICTION FOR BURGLARY COULD BE BASED UPON DEFENDANT'S DISOBEDIENCE OF THE COURT'S ORDER NOT TO ENTER HUSSEIN'S APARTMENT WAS ERROR REQUIRING REVERSAL OF HIS CONVICTION OF BURGLARY. (Not raised below).
THE PROSECUTOR'S COMMENTS IN SUMMATION CONCERNING COLLUSION BETWEEN THE DEFENDANT'S EXPERT WITNESSES AND DEFENSE COUNSEL, AS WELL AS COMMENTS TO THE EFFECT THAT THEIR TESTIMONY WAS THAT OF CHARLATANS WITH MERELY VENAL MOTIVES, PARTICULARLY IN THAT THE TRIAL JUDGE REFUSED TO GIVE A CURATIVE INSTRUCTION, DEPRIVED DEFENDANT OF A FAIR TRIAL.
THE TRIAL COURT'S FAILURE TO CHARGE THE JURY CONCERNING THE DEFENDANT'S CLAIM OF RIGHT DEFENSE TO THE CHARGE OF THEFT REQUIRES REVERSAL OF HIS CONVICTIONS FOR THEFT AND BURGLARY. (Not raised below.)
HUSSEIN'S TESTIMONY CONCERNING THE $370 CHECK WHICH SHE RECEIVED FROM THE PASSAIC COUNTY JAIL AUTHORITIES CONSTITUTED INADMISSIBLE HEARSAY SINCE ITS NECESSARY IMPORT WAS THAT DEFENDANT HAD ADMITTED BOTH THE FACT OF THEFT AND HIS GUILT OF THAT OFFENSE TO THIRD PARTIES. AS A CONSEQUENCE, HIS CONVICTIONS OF BOTH THEFT AND BURGLARY MUST BE REVERSED. (Not raised below.)
THE TRIAL COURT'S SENTENCE IS EXCESSIVE AND REPRESENTS A GROSS ...