On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-08-1084.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Coburn, Fuentes and Chambers.
Defendant Andre Barnes, an inmate at the Special Treatment Unit (STU), was tried before a jury and convicted of third- degree aggravated assault against an STU law enforcement officer, N.J.S.A. 2C:12-1b(5)(a). The trial court sentenced defendant to an extended term of seven years, with three years of parole ineligibility as a persistent offender under N.J.S.A. 2C:43-7a(4). We affirm.
We gather the following facts from the evidence presented at trial. On the date of the assault, STU officer Jeffrey C. Leary observed defendant "pass something off" to another inmate in the kitchen area. As he approached to investigate, Leary noticed defendant had "a closed right hand." In response to Leary's inquiry as to what was in his hand, defendant stated: "Mind your own [expletive] business." When Leary asked again, defendant opened his fist and revealed a fifty dollar bill, which is considered contraband in the STU.
Leary ordered defendant to place his hands on the refrigerator; defendant complied. Just as Leary was calling a supervisor for backup, defendant turned, pushed Leary in the chest and ran. Leary fell onto a table, but did not sustain any injuries from that push. With Leary in pursuit, defendant ran away, tripping and falling twice. Leary eventually caught up to defendant. Leary testified that as he "put [his] hand on [defendant's] shoulder and grabbed his . . . shirt, [defendant] turned around with a closed left fist and punched [Leary] in the eye as [defendant] was standing up." Leary experienced "blurred vision" and felt "dizzy." Defendant continued to run with Leary in pursuit.
Leary caught up to defendant a second time. As he tried to grab defendant around the waist, he was "pushed down" by defendant and hit his knee on the floor. Officer Michael Tedesco, who responded to Leary's radio-transmission request for a supervisor, arrived at the scene and witnessed defendant push Leary down to the ground. Leary shouted to Tedesco to "grab [defendant], he has money." Tedesco ran after defendant, eventually catching him and placing him in handcuffs.
Leary was treated for injuries sustained to his eye and knee. He had surgery on his knee and missed three months and three weeks of work. He also received worker's compensation benefits. At the time of trial, Leary continued to complain of residual knee pain and impaired mobility.
Two STU officers testified as defense witnesses. Officer John Steffanelli was working in the kitchen with Leary on the date and time of the incident. According to Steffanelli, he saw Leary speaking with defendant, and upon moving closer to see if there was a problem, heard Leary ask defendant to open his hands. Steffanelli then witnessed defendant push Leary in the chest with two hands and run. Steffanelli proceeded to lock down his unit and radioed "a Code 33," an emergency signal.
Steffanelli did not see defendant punch Leary because he was locking down his unit.
Officer Kevin Jones was also working at the STU at the time. Jones testified that he did not witness defendant throw Leary to the ground. Jones only witnessed the end of the chase; he saw defendant run through a doorway with Tedesco and Leary right behind him.
The trial court denied defendant's request for an adjournment to have George Neely, another STU inmate, testify about what he claimed he witnessed at the time of the incident. In support of this application, defense counsel produced the report of a defense investigator who had interviewed Neely. According to the report, Neely was working in the kitchen on the date and time of the alleged incident. He observed Leary try to take something out of defendant's hand but defendant was uncooperative. Neely witnessed defendant run from the kitchen with Leary and Steffanelli in pursuit, but did not see defendant push or hit either officer.
After considering this proffer, the trial judge denied the adjournment request, finding that Neely's testimony was not relevant as to whether the State proved the assault beyond a reasonable doubt, since Neely never saw defendant strike any officer. Although the court would have permitted Neely to testify if he had been ...