On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-04-0686.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Coburn and Chambers.
A jury found defendant not guilty of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), as alleged in count one of the indictment, but guilty of the remaining charges alleged respectively in counts two and three of the indictment; namely, third degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge approved the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a), merged the weapons offense into the assault, and sentenced defendant to prison for seven years with half of that term to be served without parole. Defendant appeals. The State concedes that a remand for re-sentencing is required by State v. Natale, 184 N.J. 458, 482 (2005), and State v. Pierce, 199 N.J. 155, 168-69 (2006), which is hereby ordered. Otherwise, the conviction is affirmed in all respects.
The charges arose from a late evening, street confrontation on November 1, 2003, in Jersey City. The main participants were defendant, his ex-girlfriend, Antoinette Holmes, and her friend, Corey Courts. During the confrontation defendant became enraged because he believed that Holmes and Courts were involved in a sexual relationship. He demanded that Courts leave. As Courts started to walk away, defendant struck him on the right side of his face with a forty-ounce beer bottle. The bottle shattered, and Courts's face was lacerated by the broken glass. Courts ran across the street, grabbed a piece of pipe from a broken gate, and started walking back toward defendant. Although Courts admitted that he initially intended to hit defendant with the pipe, he did nothing to carry out that act. Holmes's sister came out into the street and told defendant, who was accompanied by four other men, that he should leave because the police were on their way. Police and paramedics arrived shortly thereafter. Courts and Holmes told the police that defendant, who had left with his friends, had struck Courts with a bottle. Courts was taken to the hospital. Later Holmes told the police that defendant had shown her a knife during the confrontation but after he had struck Courts with the bottle.
Defendant testified that during the confrontation Holmes told him she wanted to watch him have sex with Courts and her. Courts, he said, then walked up to him, felt him, and pushed him up against a wall. He cursed at Courts, who responded by cutting defendant with a knife. In self-defense, he then struck Courts in the head with the bottle.
Defendant was arrested in February 2004 and indicted in April 2004. Eight months after the incident, on July 13, 2004, defendant filed a complaint against Courts, and gave the police a statement asserting the story of self-defense for the first time. On cross-examination, the prosecutor questioned defendant about why he had not sought treatment for his wound and why he had not immediately reported the alleged assault to the police. On re-direct examination, defendant said that he took neither course of action because he was on parole when the incident occurred and feared that going to the hospital or the police might result in a parole violation.
Defendant offers the following arguments on appeal:
POINT I: THE PROSECUTOR'S USE OF DEFENDANT'S SILENCE TO ATTACK HIS DEFENSE OF SELF-DEFENSE AS A LAST-MINUTE FABRICATION VIOLATED HIS STATE PRIVILEGE AGAINST SELF-INCRIMINATION AND MANIFESTLY PREJUDICED HIS RIGHT TO A FAIR TRIAL. N.J.S. 2A:84A-19; N.J.R.E. 503. (Not Raised Below).
POINT II: INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
POINT III: THE PROSECUTOR USURPED THE JUDGE'S FUNCTION DURING SUMMATION BY INSTRUCTING THE JURY ON THE ELEMENTS OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND THE MEANING OF REASONABLE DOUBT AND, THEREBY, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).
POINT IV: THE TRIAL COURT IMPROPERLY FAILED TO CONSIDER THE FULL RANGE OF POSSIBLE SENTENCES FOR DEFENDANT, FROM THE ORIGINAL TERM MINIMUM TO THE EXTENDED TERM MAXIMUM; THEREFORE, DEFENDANT'S SENTENCE SHOULD BE REVERSED AND THE MATTER REMANDED. U.S. CONST., AMEND. VI.
After carefully considering the record and briefs, we are satisfied that all of defendant's arguments, putting to one side his first point and the need for resentencing, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments as to his first point.
Defendant's claim, that the prosecutor's use of his pre- and post-arrest silence in cross-examination and summation violated his privilege against self-incrimination under N.J.S.A. 2A:84A-19 and N.J.R.E. 503, was not made during trial. Consequently, the plain error rule applies. R. 2:10-2. Although defendant's point heading relies on statutory bases, the issue appears to be of state constitutional dimension. State v. Brown, 190 N.J. 144, 157-58 (2007). But assuming that to be so, reversal, if there was error, "depends finally upon some degree of possibility that it led to an unjust verdict." State v. Macon, 57 N.J. 325, 335 (1971).
Defendant relies on the following excerpts from the record, beginning with this cross-examination by the prosecutor:
Q: I'm going to show you what's been marked S-2 for identification by the State. Do you recognize this?
A: Yes. That's the statement I put on him, [Courts], pressed charges on him as well.
Q: This is a statement that you ...