On appeal from Superior Court of New Jersey, Law Division, Camden County, L-1427-05-99.
Before Judges Conley, A. A. Rodríguez and Lefelt.
The opinion of the court was delivered by: Conley, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant's criminal convictions and sentences, including a NERA *fn1 sentence enhancement, arose from a battering of his live-in girlfriend that occurred over a number of hours and involved different forms of assaultive conduct and different forms of weapons. In addition to attempted murder, the indictment included third-degree aggravated assault under N.J.S.A. 2C:12-1b(2) (attempting to cause bodily injury with a deadly weapon) and third and fourth-degree weapons offenses. There were several deadly weapons charged in the indictment and charged to the petit jury. They were "speakers and/or candle holder and/or opera glasses and/or statue and/or door." The jury instructions charged as lesser included offenses of the attempted murder count, second- degree aggravated assault under N.J.S.A. 2C:12-1b(1) (purposefully, knowingly or recklessly causing serious bodily injury or attempting to do so) and third-degree aggravated assault under N.J.S.A. 2C:12-1b(7) (purposefully, knowingly or recklessly causing significant bodily injury or attempting to do so). As to these included offenses, the jury verdict form did not contain separate interrogatories for their alternative causing or attempting elements. Thus, when the jury acquitted defendant of attempted murder but convicted him of the 2C:12-1b(1) second-degree aggravated assault, the verdict on that does not reflect whether the jury found that he caused serious bodily harm or only attempted to do so. Similarly, the verdict did not include separate interrogatories with respect to the weapons charges as to which weapon or weapons were used. Thus, while the jury convicted defendant of third-degree aggravated assault under N.J.S.A. 2C:12- 1b(2) (causing or attempting to cause bodily injury with a deadly weapon), the verdict does not reflect which of the implements included in the charge (speakers, candle holder, opera glasses, statue, door) defendant used to inflict the bodily injury element of that offense.
The convictions included not only the second and third-degree aggravated assaults, but fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4d; third-degree terroristic threats, N.J.S.A. 2C:12-3a, b; and third-degree criminal restraint, N.J.S.A. 2C:13-2a, b. Concurrent five year terms on the latter two convictions were imposed consecutive to a nine-year term with an eighty-five percent disqualifier on the second-degree aggravated assault into which the third-degree assault and weapons convictions were merged.
On appeal, defendant contends:
POINT ITHE NO EARLY RELEASE ACT SHOULD NOT HAVE BEEN APPLIED TO DEFENDANT'S SENTENCE UNDER COUNT ONE.
POINT II THE COURT SHOULD HAVE INSTRUCTED THE JURY ON THE LESSER INCLUDED CHARGE OF SIMPLE ASSAULT.
POINT III THE COURT SHOULD NOT HAVE CHARGED SECOND DEGREE AGGRAVATED ASSAULT OVER DEFENDANT'S OBJECTION.
POINT IV THE TRIAL COURT IMPROPERLY ALLOWED VIOLATIONS OF ITS SEQUESTRATION ORDER.
POINT V THE SENTENCE IMPOSED ON COUNT ONE WAS EXCESSIVE.
POINT VI THE VICTIM, AND THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO ARGUE THE VICTIM SUFFERED PERMANENT INJURIES.
We have considered these contentions in light of the record and applicable law. We are convinced that all but the NERA sentence enhancement issue are without merit and ...