October 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE BARNES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 immediately available, Neely's proffered testimony did not warrant disrupting the trial.
Finally, in an effort to ameliorate any prejudice associated with defendant's custodial status, the trial judge gave the jury the following instructions.
I also want to talk to you and caution you about evidence that you've received in this matter, which describes events which allegedly occurred within a correctional facility. The mere fact that events may have occurred in a correctional facility should . . . in no way have any bearing or influence upon your determination of the facts in this case.
The only relevance of that information is to your determination as to whether Officer Leary was acting in the performance of his duties while in uniform. That's an element that the State has to prove beyond a reasonable doubt as you'll hear shortly when I get to the elements of the offenses, okay?
So that is why you heard such testimony of the defendant being in a correctional facility at the time of the alleged events.
But aside from that issue, that element that the State is required to prove beyond a reasonable doubt and so therefore evidence was permitted on that issue, aside from that issue, the mere fact that the defendant was in a correctional facility at the time of the events should not, shall not influence your determination of the facts in any way. Do not consider it except as it bears on the element of whether Corrections Officer Leary was in uniform in performance of his duties when you convene . . . as a jury to deliberate, okay.
So that's why it's in there for -- and you should not consider it for any other purpose, it's not otherwise evidence of guilt of this particular crime and it's not to be considered by you other than as to that element of whether Corrections Officer Leary was in uniform in performance of his duties as a corrections or law enforcement officer.
And the presumption of innocence applies and maintains even though the case allegedly occurred within a correctional facility.
Against these facts, defendant now appeals raising the following arguments.
THE COURT REVERSIBLY ERRED IN FAILING TO GIVE A PROPER LIMITING INSTRUCTION TO THE JURY BOTH AT THE TIME THAT THE VARIOUS CORRECTION OFFICERS TESTIFIED REGARDING THE INCIDENT WITHIN THE CORRECTIONAL FACILITY WHERE BARNES WAS AN INMATE AS WELL AS IN ITS FINAL CHARGE WHICH SHOULD HAVE INCLUDED A WARNING THAT THE JURY SHOULD NOT INFER THAT BARNES WAS CRIMINALLY PREDISPOSED TO COMMITTING THE CRIME WITH WHICH HE WAS CHARGED. (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I Para. 10)
THE COURT REVERSIBLY ERRED IN REFUSING TO PROVIDE A FALSE IN ONE, FALSE IN ALL CHARGE TO THE JURY. (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para. 10)
THE COURT REVERSIBLY ERRED IN REJECTING BARNES'S MOTION FOR A NEW TRIAL. (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para. 10)
THE COURT FAILED TO FOLLOW THROUGH ON HAVING THE STATE PROVIDE TO THE DEFENSE LEARY'S COMPLETE WORKMAN'S COMPENSATION AND MEDICAL RECORDS REGARDING HIS INJURIES ALLEGEDLY RECEIVED IN THE INCIDENT. (U.S. Const. Amends. VI & XIV; N.J. Const. (1949) Art. I Para. 10)
THE COURT FAILED TO DIRECT THE STATE AS REQUESTED BY BARNES TO PROVIDE LEARY'S PERSONNEL RECORDS TO THE DEFENSE. (U.S. Const. Amends. VI & XIV; N.J. Const. (1949) Art. I, Para. 10)
THE COURT ERRONEOUSLY REFUSED TO GRANT THE DEFENSE AN ADJOURNMENT TO HAVE GEORGE NEELY, AN INMATE AT THE STU, TESTIFY. (U.S. Const. Amends. VI & XIV; N.J. Const. (1949) Art. I, Para. 10)
BARNES'S SEVEN-YEAR EXTENDED TERM WITH THREE-YEARS OF PAROLE INELIGIBILITY WAS ILLEGAL AND EXCESSIVE.
BARNES IS ENTITLED TO JAIL CREDITS OF 378 DAYS FROM MAY 5, 2005, THE DATE OF THE INCIDENT TO MARCH 17, 2006, THE DAY BEFORE HIS SENTENCING AS ORIGINALLY PROPOSED BY THE STATE, NOT THE INADEQUATE 55 DAYS FOUND BY THE COURT.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments. Defendant's argument as to Point I was not made to the trial court. We thus review this issue under the plain error standard. R. 2:10-2. We are satisfied that the instructions given by the trial court adequately addressed the question of how the jury should view defendant's custodial status.
With respect to Point IV, we discern no abuse of discretion in the trial court's ruling denying defendant access to Leary's personnel file, or the file of his worker's compensation case. With respect to the sentence imposed by the court, the trial judge found that the "need to deter assaults on unarmed officers" created an aggravating factor. While this factor can be viewed as an element of the offense of aggravated assault, N.J.S.A. 2C:12-1b(5)(a), such a finding here was not erroneous. Attacks by inmates against corrections officers warrant a high level of particular deterrence. Corrections Officers patrolling a high security facility like the STU, do so, by necessity, in a particularly vulnerable manner. They must mingle with inmates at close proximity, unarmed and outnumbered. Physical confrontation by inmates against these officers can quickly escalate out of control, exposing facility staff, including innocent inmates, to great harm. The trial court's decision to consider this as an aggravating factor expresses a sensitivity to this unique penal environment, and is thus a proper consideration in crafting a sentence.
The sentence imposed was otherwise well within the trial court's statutory authority.
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