On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-08-1356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
A jury convicted defendant Janusz Oleksak of fourth-degree criminal trespass and weapons offenses. Defendant contends his conviction must be reversed because the court committed reversible error when it (1) denied his motion to dismiss the indictment, (2) improperly admitted photographs and testimony related to an alleged assault upon his girlfriend, and (3) imposed a sentence that was manifestly excessive and contrary to State v. Natale, 184 N.J. 458 (2005) (Natale II). The State concedes that defendant is entitled to a remand for re-sentencing pursant to Natale II. We otherwise affirm defendant's conviction.
Defendant's conviction arose out of a domestic violence dispute that occurred on April 28, 2004, in his girlfriend's apartment. The matter then escalated into an incident involving his girlfriend's neighbor, George Shader, who lived in a room within the same apartment house, and to whom his girlfriend ran for assistance. Shader, upon hearing loud noises, was in the process of calling the police when defendant's girlfriend and then defendant entered his room. The entire ruckus in Shader's room was picked up by the police dispatcher because Shader never terminated the call. When the police arrived on the scene, defendant apparently became aware of their presence and fled. He returned to Shader's room the next day and attempted to apologize. Shader again called the police, who arrived and arrested defendant. As a result of the April 28, 2004 incident, police charged defendant with the disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1(a), and hindering apprehension, N.J.S.A. 2C:29-3. He was also charged with resisting arrest, N.J.S.A. 2C:29-2, stemming from an unrelated March 26, 2004 incident. On May 25, 2004, defendant pled guilty to the hindering and resisting arrest charges. The court dismissed the simple assault charge as merged into these two offenses. Defendant was sentenced to serve fifteen days in jail, and the appropriate fines and penalties were imposed.
Based on the April 28, 2004 altercation, on June 10, 2004, Shader filed a complaint which led to an indictment charging defendant with second-degree burglary, N.J.S.A. 2C:18-2 (Count One); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Count Two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Four).
Defendant filed a motion to dismiss the indictment, contending that all of the charges stemming from the April 28, 2004 incident should have been resolved in a single proceeding. The court rejected this argument finding,
The defendant now seeks to dismiss the indictment or, alternatively, hear testimony from the State regarding the threat and any disposition or treatment of these matters. The defendant asserts the indictment should be dismissed based on due process considerations as well as concepts of administration of justice, fundamental fairness and mandatory joinder.
The defendant submits that the knowledge of the defendant's pending municipal court charges was imputed to the State and the defendant reasonably assumed that his appearance before municipal court resolved all pending charges.
N.J.S.A. 2C:8-1(b) and Rule 3:15-1 provide that a defendant shall not be subject to separate trials with multiple criminal offenses based on the same conduct or arising from the same episode if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.
Knowledge of the scale and scope of criminal offenses arising from the same episode as municipal court charges will generally not be imputed to the prosecuting officer until the complaint alleging the indictable offense is forwarded. State v Tsoi, 217 N.J. Super. 290.
The State contends, while the municipal court charges and criminal offenses arose from the incidents of April 28th, they both involve separate victims, which is the case. The disorderly persons charges, which were under the sole jurisdiction of the municipal court were resolved on May 25, 2004 and were related to domestic violence matters against the female victim and the defendant's flight to prevent his arrest.
Although the police officers who responded to the scene were aware of Mr. Schader's [sic] allegations and the facts are as indicated by the attorney, the female victim in the domestic violence dispute with the defendant had fled to the apartment of Mr. Schader [sic] next door when the second incident occurred. And, although the police were aware of his allegations, they exercised discretion and chose not to bring charges against the defendant. Instead, Mr. Schader [sic] was advised of how to file a complaint. He subsequently did so, on June 10, 2004, after the municipal court proceedings had been completed.
The State represents the Prosecutor's office had no knowledge of the case until after Mr. Schader's [sic] complaint, which contained indictable offenses and, of course, were subject to the jurisdiction of the Superior Court, which, again, would impact the Rule which talks about within the jurisdiction and venue of a single court.
The Court finds that there's a legitimate distinction that can be drawn between the domestic violence altercation between the defendant and Ms. Arciszewska and a subsequent victim, which occurred after the fact when ...