July 11, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL SAMBOY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-11-2080.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2007
Before Judges Stern, A. A. Rodríguez and Sabatino.
Following a jury trial, defendant was convicted of criminal trespass as a lesser included offense of attempted burglary (count one), terroristic threats (count two), possession of a weapon for unlawful purposes (count five), and unlawful possession of a weapon (count six). The court merged count six into count five and imposed a five year sentence with two-and-a-half years to be served before parole eligibility thereon, a concurrent five year sentence with two-and-a-half years before parole eligibility for count two, and a concurrent eighteen month sentence on count one.
The trial proofs reveal the following. On the afternoon of August 10, 2001, two minor children, M.B. and P.B., then approximately ages six and seven years old, were playing in an inflatable plastic swimming pool in the front of their house in Jersey City, while their parents ("Mr. and Mrs. B.") were inside the house. Both children testified that a man had come onto the front lawn of their house and cut the inflatable pool with a knife. P.B. ran into the house to tell his parents what was happening. Both children described the man as thin, white, and having tattoos, and both identified defendant in court as the man who cut the pool.
On the afternoon of August 10, 2001, Officer Elaine Velazquez and her partner were dispatched to the B's house. Officer Velazquez observed that the B's inflatable pool had a "slash on it which deflated it." Mr. B gave her a description of the perpetrator, but because of a "language barrier," she was only able to gather that the perpetrator was white, wore a yellow shirt, and was in the 5'8" range.
On August 14, 2001, while Mr. and Mrs. B were at home watching television, one of the children ran into the house and told them that the same man who was holding the knife the other day was outside the house. Mr. B testified that upon learning of defendant's presence outside his house, he went outside and down his front stairs and said "excuse me" twice and then "yo" without receiving a response from defendant. According to Mr. B, after his unsuccessful attempts to communicate with defendant, defendant threw a can of beer at him, hitting him in the leg, and then brandished a knife and chased him "up the stairs" to his home. Mr. B further testified that, with the help of his wife, he was able to get into the house and lock the door, and that defendant yelled "he was going to kill me and my wife and my family."
Mrs. B also testified that a man with a knife "threw a can of beer on us[,]" and tried to turn the doorknob and enter the house once her husband was inside. Mrs. B identified defendant in court as the man she saw that day.
Ashraf Francis, a neighbor of the B family, testified that on August 14, 2001, he heard a man outside cursing, using the "F. word" and saying that he was going to "kill you, kill your family." When he went outside to see what was going on, Francis saw a man running along the street while bleeding. He recognized the man from around the neighborhood, and identified him at trial as defendant.
Two other neighbors, Louise and Drew Prather, also testified to seeing a man threatening Mr. B. Ms. Prather testified she heard him say "n, ya dead and I'm gonna kill you and your whole family." Mr. Prather heard the same. He further testified that the man who threatened Mr. B "had some beer" and was bleeding.
On August 14, both Mr. and Mrs. B called the police several times. Officer Furch arrived on the scene and spoke to Mr. B and several witnesses, who provided him with similar descriptions of what had occurred and gave him the address of where they believed he could find the defendant. Officer Furch then traveled to the location and was greeted by a woman who identified herself as defendant's girlfriend. She said "her boyfriend was inside bleeding" and gave the officer permission to enter the home. With backup, Officer Furch entered the home, where he found a man inside bleeding from his hand. Furch testified that the man fit the description that he had been given "perfectly." Officer Furch then took the man outside, where Mr. B identified him as the same man who had threatened him earlier.
On this appeal defendant argues that the trial court erred in (1) permitting the indictment to be amended to reflect a different offense date "than was presented to the grand jury[,]" (2) "not disclosing to the jury the location of the alleged offense and then abruptly dismissing the juror who lived in the area[,]" (3) denying a mistrial after the introduction of "improper hearsay testimony[,]" (4) denying a motion for acquittal, and (5) imposing a sentence based on aggravating factors not submitted to the jury. We reject the contentions but remand for resentencing.
Regarding defendant's first argument on appeal, the amendment of the date alleged in the indictment was only with regard to count five (and to count six by reference thereto) to correct the date of the first offense to August 10, 2001, one day earlier than charged. While defendant unsuccessfully requested an adjournment, he never asserted any prejudice by the amendment. In State v. Middleton, 299 N.J. Super. 22, 33-35 (App. Div. 1997), we remanded a case for a new trial where an indictment was amended to change the date of the crime charged, and the defense was not given time to prepare in light of the amendment. There, the defense was premised on an alibi defense relating to the date alleged. In contrast, here, defendant was notified three weeks in advance of trial that a motion would be made to amend the date. We see no prejudice to defendant and no basis for reversal. See State v. Steffanelli, 78 N.J. 418, 429 (1979); R. 3:7-4. We also note that the issue does not affect, in any event, the convictions on counts one and two.
In reference to defendant's second argument, we find no abuse of discretion in excusing a juror who indicated, immediately after the State's opening, that she lived "around the corner" from the scene of the alleged offenses and was concerned that she could not be fair in light of that and an unrelated attempted burglary in her house.*fn1 In fact, defendant "agreed to allow that particular juror to be released[,]" and "agree[d] to some type of cautionary instruction" to be given to the jury. The trial judge thereafter instructed the jury that the juror had been excused "with the consent of both attorneys[,]" that they should not "speculate" on the reasons why, and that it should have no impact on their consideration of the case.
The defendant's third argument involves alleged "improper hearsay testimony[.]" The judge sustained an objection, and instructed the jury not to consider the excited utterance testimony of the mother about what her children said to her on August 10. In any event, the children testified.
P.B. testified that a man "cut the pool" with a knife, which was described by the boy's gesture as being "approximately 12 to 15 inches." He also heard the man say "[h]e was gonna kill me and my family." M.B. also testified that defendant "cut" the pool with a knife about eight inches long. He further testified that the defendant had tattoos and, on the second occasion, threw a can of beer on his father. Significantly, both boys identified the defendant as the perpetrator, and while their ages and some discrepancies in their testimony may affect their credibility, it does not warrant a judgment of acquittal. See State v. Reyes, 50 N.J. 454, 458-59 (1967).
Regarding defendant's final argument, this is a direct appeal, and defendant was sentenced prior to the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005). Accordingly, in light of the fact defendant received sentences above the former presumptive terms, we must remand for resentencing.
We affirm the conviction and remand for resentencing.