On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication March 20, 1997.
Before Judges King and Loftus. The opinion of the court was delivered by Loftus, J.A.D.
The opinion of the court was delivered by: Loftus
The opinion of the court was delivered by
This case involves the extended term provisions of N.J.S.A. 2C:44-3e which were adopted in 1990 to provide enhanced punishment for crimes committed with a purpose to intimidate an individual because of race. L. 1990, c. 87, § 4. The trial Judge sentenced Colella to an extended term under this section. The extended term sentencing procedure increased defendant's exposure from a minimum of five years and a maximum of ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2), to a minimum of ten years and a maximum of twenty years, N.J.S.A. 2C:43-7(a)(3). We affirm.
Defendant Christopher D. Colella (Colella) appeals from a judgment of conviction of second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1), after a jury trial. At sentencing, the Judge granted the State's motion for imposition of an extended term under N.J.S.A. 2C:44-3e, and committed Colella to the custody of the Commissioner of the Department of Corrections for a term of sixteen years with a five and one-third year parole disqualifier. The Judge also imposed a $50 V.C.C.B. penalty and ordered Colella to reimburse the victim for any unpaid medical bills upon release from prison.
On appeal, Colella contends that the Judge inadequately charged the jury on the issue of causation; the jury's guilty verdict was against the weight of the evidence; and the Judge erred in imposing an extended term under N.J.S.A. 2C:44-3e, thus resulting in a grossly excessive sentence. We conclude that these contentions are non-meritorious. We affirm.
This is a summary of the State's evidence. On January 14, 1993, at approximately 10:20 p.m., Lymus E. Young, a forty-three year old African-American janitorial worker of New Jersey Cleaning Services, was assigned to the Trenton Train Station. He discovered a MAC card which had been mistakenly left in the station's MAC machine. Because of the late hour, and because all station offices were closed, he decided to try to locate the owner of the card. With the card in his hand, he walked along and asked various people if the card belonged to them. When he reached the station's main waiting area, Young first approached Willie McDaniel, who was waiting for the train to New York.
Young then walked over to two people who were seated about ten feet away. They were Colella, a caucasian, and his girlfriend, Lori Torres. According to Young, he did not touch Colella or Torres. He excused himself for interrupting and inquired as to whether the card belonged to Colella. Colella called Young names and told him to "get out of here." Young was surprised and said: "Gee, all I asked you is if this card belonged to you."
McDaniel, who observed the entire incident, testified that Colella appeared to be upset over an argument he was having with Torres. After Young inquired about the card, McDaniel reported that Colella said: "Nigger, get the fuck out of here, you see I'm talking to my woman." McDaniel confirmed that Young was surprised by Colella's response. Colella then jumped up and repeated: "Nigger, I told you to get the fuck out of here, you don't [sic] understand." As Young backed away, Colella punched him in the face. While holding his bloody face, Young continued to back up but was hit by defendant again in the face.
Almost simultaneously, Patrolman Robert Eisman arrived and arrested Colella. According to Eisman, as he approached the scene, he witnessed Colella come charging forward and hit Young once in the face. He observed that Colella was wearing a ring on his right hand and noted that Young was bleeding from under his left eye. Eisman also heard Colella call Young a "nigger," as well as say that "he would be beating blacks all his life." He summoned fellow officer Joseph Robbins for back-up and called an ambulance for Young who was bleeding and in pain. He then asked McDaniel and Torres what had happened.
McDaniel quickly informed Eisman that notwithstanding Colella's protestations of innocence and story of being "jumped" by Young, Young had done nothing to provoke Colella. At that point Colella interjected: "Oh, you're going to take the word of a nigger over me." This statement was heard not only by McDaniel, but also by Young and officers Eisman and Robbins. According to McDaniel, as Colella was being handcuffed, he began to yell at Eisman: "Oh, you're nothing but a nigger lover, nothing but a nigger lover."
Young was taken by ambulance first to Helene Fuld Hospital and then to Wills Eye Hospital in Philadelphia where he was admitted and remained for three days. Even after his release he remained in constant pain, was unable to return to work and ultimately had to be readmitted to the Wills Eye Hospital. According to Young, although he had lost most of the vision in his left eye in 1973 after being scratched in the eye with a screwdriver, he had no pain in that eye until after being struck by Colella. He was advised that he would only get relief from the pain if the eye was removed. Young underwent the ...