Before Judges Pressler, Ciancia and Axelrad. On appeal from the Superior Court of New Jersey, Law Division, Camden County, 00-2- 429-I.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 19, 2002
Appellant filed a pro se supplemental brief.
Tried to a jury, defendant Jerome Ambroselli was convicted of fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), and fourth-degree *fn1 resisting arrest, N.J.S.A. 2C:29-2a. *fn2 Defendant was sentenced for aggravated assault to a custodial term of eighteen months with a nine-month parole disqualifier, and for resisting arrest to a concurrent term of eighteen months. Defendant's sentence was ordered to be served consecutively to another sentence he was serving. Subsequent to filing his appeal, defendant refiled in the trial court his motion to dismiss the charges, asserting the complaints were not executed in the presence of a judicial officer. He contended this issue was not properly disposed of by the trial court. Without objection from the State, we granted the motion for a limited remand for determination of this issue by the trial court. The trial court re-affirmed its previous denial of defendant's motion because "an individual by the name of Patty Lamb designated as the Special Deputy Court Administrator (SDCA) had executed the warrants and that this was consistent, in the courts view, with Rule 3:3-1(a)."
Through counsel, defendant asserts the following claims on appeal:
POINT I [A] BECAUSE THE COMPLAINT-WARRANT IN THIS CASE WAS IMPROPERLY EXECUTED, IT MUST BE DISMISSED.
[B] THE TRIAL COURT'S OPINION ON LIMITED REMAND IGNORED THE PRIMARY BASIS OF THE DEFENDANT'S CHALLENGE TO THE VALIDITY OF THE COMPLAINT-WARRANTS; FURTHER FACT-FINDING IS NECESSARY TO RESOLVE THE ISSUE.
POINT TWO THE TRIAL COURT'S GRATUITOUS INTERPOLATIONS ON THE KEY ISSUE OF THE REQUISITE MENTAL STATE FOR CONVICTION OF AN ATTEMPT TO CAUSE BODILY INJURY DILUTED THE INSTRUCTION AND HAD THE CAPACITY TO CONFUSE AND MISLEAD THE JURY, THUS DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT THREE THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT IT SHOULD CONSIDER WITH CAUTION TESTIMONY OF AN OUT-OF-COURT STATEMENT PURPORTEDLY MADE BY THE DEFENDANT WAS PLAIN ERROR REQUIRING REVERSAL. (Not Raised Below).
POINT FOUR THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE; MOREOVER, A PERIOD OF PAROLE INELIGIBILITY WAS UNWARRANTED IN THIS CASE. In a pro se brief supplemental brief, defendant further claims:
N.J.S.A. 2B:12-21(b) IS UNCONSTITUTIONAL UNDER THE "SEPARATION OF THE POWERS" DOCTRINE IN ARTICLE III, PAR. I OF THE NEW JERSEY CONSTITUTION, AND THUS WOULD WARRANT DISMISSAL OF DEFENDANT'S CRIMINAL COMPLAINT AS BEING CONSTITUTIONALLY DEFECTIVE.
We find no merit in defendant's claims alleging defective complaints and challenging the constitutionality of the statute authorizing officials to act for the court, and thus affirm those aspects of the appeal. We find error, however, in the jury instruction as to the requisite mental state of "purposeful", a material element in both offenses of which defendant was convicted. Because defense counsel made no objection to the instruction at trial, the standard of review is plain error. R. 1:7-2. We conclude defendant has satisfied the plain error standard in connection with the jury instruction, Rule 2:10-2, and, therefore, reverse defendant's convictions and remand for a new trial. Accordingly, we ...