On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 03-07-1377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Wefing and Lyons.
Tried to a jury, defendant was convicted of two counts of aggravated assault, one in the second degree and one in the third degree, N.J.S.A. 2C:12-1(b)(1), -1(b)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). At sentencing, the trial court merged the conviction for third-degree aggravated assault and possession of a weapon for an unlawful purpose into the second-degree conviction for aggravated assault. It then proceeded to sentence defendant as if she had been convicted of a third-degree crime and imposed a three-year term of incarceration, subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. It also imposed a concurrent term of three hundred sixty-five days for unlawful possession of a weapon. Defendant has appealed her convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to reverse and remand for a new trial.
On appeal, defendant raises the following arguments:
THE COURT ABUSED ITS DISCRETION IN FAILING TO GRANT A NEW TRIAL WHERE THE STATE'S CROSS[-]EXAMINATION OF THE DEFENDANT VIOLATED DEFENDANT'S RIGHT TO REMAIN SILENT; AND THUS, DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HER.
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO DEVIATE FROM THE PRESUMPTIVE TERM OF IMPRISONMENT AND IMPOSE A PROBATIONARY SENTENCE.
In the early morning hours of June 9, 2003, in Atlantic City, defendant became involved in an altercation with Nereida Perez. The dispute first erupted in Grabel's Bar, and the two women were physically violent toward each other. Perez was removed from the premises, and defendant went to the washroom to clean her face, which was bleeding. Defendant then left the bar and met Perez outside, where the two resumed their fight. In that fight, Perez received numerous cuts to her face and arms and along the back of her head. At trial, the circumstances surrounding their altercation were disputed, as was the identity of which woman first had possession of a knife. Both women were injured in the incident, Ms. Perez more seriously than defendant.
A friend drove defendant to Atlantic City Medical Center, but defendant recognized a friend of Ms. Perez's in the emergency room and decided not to go in. Defendant's friend then drove her to Shore Memorial Hospital. She left before seeing a doctor, however, because she learned that both the police and Ms. Perez's family members were looking for her. She stayed in a motel and then went to New York City, where she was treated at St. Luke's Hospital. She contacted a lawyer, who informed her that a warrant had been issued for her arrest.
She turned herself in to the police on June 12. On June 25, almost two weeks later, she returned to the police and sought to press charges against Ms. Perez. The record before us does not disclose what happened to those charges.
Defendant testified at her trial and maintained that Ms. Perez was the aggressor. She said that Ms. Perez had the knife initially and that she, i.e. defendant, got the weapon away from her. Defendant testified that she struck Ms. Perez only because "she was still coming at me. She was still trying to fight me, and I didn't know if she had something else in her hand."
During cross-examination, the following colloquy occurred:
Q: You went to the police station and turned yourself in, is that right?
Q: And then you left, is ...