October 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LETHA ARTHUR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-02-0143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2007
Before Judges Coburn and Grall.
A jury found defendant Letha Arthur guilty of third-degree aggravated assault, based on purposely, knowingly or recklessly causing bodily injury to a public school teacher. N.J.S.A. 2C:12-1a(1), b(5)(d). The judge sentenced defendant to four years probation and 364 days in jail and imposed a $100 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. Defendant appeals from the final judgment of conviction and sentence.*fn1 We affirm.
The evidence at trial was adequate to permit the jurors to find the following facts. On Thursday, February 12, 2004, Elaine Bisciotti, a teacher employed in a public school in Patterson, was conducting an after-school literacy program for first and second graders. Defendant's son was a member of the class. He and another student scuffled, and Bisciotti intervened and pushed them apart. Defendant's son landed on the carpeted floor in a sitting position. The other child struck his head on a desk. Defendant's son left the class, went home and told defendant about the incident.
Defendant went to her son's school. At her request, a teacher directed her to Bisciotti's classroom. The vice principal saw defendant, and he and the teacher, who had also given her directions, followed her to Bisciotti's classroom.
Defendant, the vice principal and the teacher entered the classroom. Although the other students were still present, defendant questioned Bisciotti. While Bisciotti attempted to explain, defendant pushed her with both hands and said "How do you like it?" Bisciotti fell backward to the floor. The other teacher, who was standing behind Bisciotti, caught her but was unable to prevent her from falling to the floor. At the vice principal's request, defendant left the classroom. Defendant said she was sorry.
Bisciotti saw a doctor. Her hand was swollen, and she was treated for injuries to two of her fingers. Although she returned to work the following Monday, she saw a physical therapist for six months and was unable to play the piano at her granddaughter's graduation.
Defense counsel asked Bisciotti about her prior experiences with defendant's son. Bisciotti explained that he had been in her class during the prior school year. She added that she had given him breakfast because he was hungry and bought him socks when she noticed that he had come to school without them.
On the basis of the foregoing evidence, the jurors found that defendant purposely, knowingly or recklessly caused bodily injury to Bisciotti, knowing that she was a public school teacher.
On appeal defendant argues:
I. THE TRIAL COURT'S JURY INSTRUCTIONS WERE DEFICIENT.
II. INADMISSIBLE EVIDENCE OF OTHER BAD ACTS WAS ADMITTED AGAINST DEFENDANT
(Not raised below).
III. EVIDENCE THAT BISCIOTTI'S INJURY PREVENTED HER FROM PLAYING THE PIANO AT HER GRANDDAUGHTER'S GRADUATION AND THE EMOTIONAL TRAUMA THIS CAUSED WAS NOT RELEVANT AND UNDULY PREJUDICIAL
(Not raised below).
IV. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
None of the arguments have sufficient merit to warrant discussion in a written opinion beyond the brief comments on the issues raised in Points I and IV of defendant's brief that follow. R. 2:11-3(e)(2).
Defendant's objection to the jury instruction is based on what she contends was an inadequate charge on her state of mind with respect to causation of bodily injury. The instruction given clearly directed the jurors that the State was required to prove, beyond a reasonable doubt, that it was defendant's "conscious object" to cause bodily injury, or that she was "practically certain" that her conduct would cause bodily injury, or that she "consciously disregard[ed] a substantial and unjustifiable risk" of causing that result. See N.J.S.A. 2C:2-2b(1)-(3); N.J.S.A. 2C:12-1a(1). No more was required. The evidence in this case did not raise a question that would require a separate instruction directing the jurors to consider whether the injury Bisciotti sustained was either too remote, accidental or dependent upon another's volitional act to have a just bearing on defendant's liability for this crime. See N.J.S.A. 2C:2-3b-c; State v. Martin, 119 N.J. 2, 16-17 (1990).
There is no basis upon which this court could conclude that defendant's sentence is excessive. In reviewing a sentence, this court may not "substitute its judgment for that of the trial court." State v. Natale, 184 N.J. 458, 489 (2005). Rather, we are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1988).
The ordinary sentence for a crime of the third degree is a term of incarceration between three and five years. N.J.S.A. 2C:43-6a(3). Defendant had a prior conviction for a disorderly persons offense and a conviction for a disorderly persons offense based on a simple assault that she committed after this crime. The judge concluded that this assault of a teacher was particularly serious because defendant committed the crime in the presence of her young students. N.J.S.A. 2C:44-1a(6). The judge also found a need to deter defendant and to deter others from committing this type of assault. N.J.S.A. 2C:44-1a(9). The judge found one mitigating factor, that defendant could respond favorably to probation. N.J.S.A. 2C:44-1b(11).
The facts the judge found in aggravation of this crime are supported by evidence in the record. The judge's finding of a need for specific and general deterrence was supported by defendant's disorderly persons offenses. Contrary to defendant's argument on appeal, there was no double counting of Bisciotti's status as a teacher, which is an element of the crime. See State v. Kromphold, 162 N.J. 345, 353 (2000) (prohibiting consideration of an element as a separate aggravating factor). While the presence of the young children who witnessed the assault might be more appropriately considered as establishing a circumstance relevant to the aggravated nature of this crime, see N.J.S.A. 2C:44-1a(1), it was not inappropriate for the judge to consider the presence of the children as an aggravating factor. This crime is committed by one who causes bodily injury to a public school teacher whether or not students witness the attack.
There is no merit in defendant's claims that the facts of this case compelled the judge to find mitigating factors based on defendant's failure to "contemplate . . . serious harm," N.J.S.A. 2C:44-1(b)(2), "strong provocation," N.J.S.A. 2C:44-1(b)(3), or the existence of circumstances "unlikely to recur," N.J.S.A. 2C:44-1(b)(8). Defendant was not being sentenced for a crime involving serious physical harm. She did not see or have first-hand knowledge of the provocative event, and she assaulted Bisciotti even though the vice principal and another teacher were present.
In short, there is no "clear error of judgment [that] shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).