On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-04-0659.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
Defendant Edmund Ko appeals from his conviction for second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and related offenses.*fn1 After merger he was sentenced to ten years in prison subject to the No Early Release Act (NERA), consecutive to a sentence he is serving for a murder committed in New York. We affirm the conviction but remand for reconsideration of the ten-year sentence pursuant to State v. Natale, 184 N.J. 458 (2005), which was decided after the sentencing in this case.
The charges arose from an incident in which defendant's former girlfriend Diane Kim was assaulted. Defendant claimed the assault was committed by his very jealous current girlfriend, Claudia Seong, and her sister Young Joo Seong. The victim, Kim, claimed that defendant, assisted by Joung Joo, held her down while Claudia slashed Kim with a knife. Ko claimed he was present at the scene, but was a shocked and innocent bystander to violence committed by Claudia and her sister.
The following is a synopsis of the testimony at the trial. Diane Kim explained that she met defendant in 1997 at a party and again at her workplace, the Safari Club; they had "a very short dating relationship." They went out drinking at Korean clubs with defendant's friends on weekends for some two months, and Kim visited defendant's home in the Atrium Apartments in Fort Lee. Their relationship was not serious and it ended gradually when they stopped calling each other. There were no hard feelings when the couple broke up.
Defendant was twenty-two years old at the time of the assault, a graduate of Cornell University, and working as a buyer at Macy's Herald Square. He corroborated Kim's account of their relationship and added that there was no "blowup," fight or violence associated with the end of the relationship; defendant met Claudia, and Kim had another boyfriend. Defendant had no animosity or ill will toward Kim.
In August 1997, Claudia became jealous of Kim and asked defendant to call her. Defendant and Kim concurred that defendant called Kim and informed her that he had a new girl friend who was jealous, and he asked Kim not to acknowledge him if she saw him. Kim asked defendant "if he was whipped," meaning "that he must really like" the new girlfriend. The phone call was friendly.
Kim heard from defendant again on November 16, 1997, at around midnight, when he called her at her home in Edgewater and asked to see her because he needed a favor. Kim asked what the favor was, but defendant "insisted that he had to see me." They agreed to meet the next morning at 11:00 a.m. at a Starbucks near Kim's home. Defendant and Claudia showed up for the meeting, but Kim did not go.
Defendant related that, after giving Claudia Kim's telephone number on the evening of November 17, he went home and went to sleep, but Claudia arrived at his apartment upset at approximately 1:00 a.m. and woke him. Defendant got dressed and accompanied Claudia to her apartment building in Cliffside Park. There, he called Kim from a pay phone downstairs and asked to see her, but she refused. Kim recalled the phone call, defendant's insistence that he needed a favor, and her refusing to see him because her "boyfriend was over."
Claudia and Young Joo came downstairs to the lobby, and defendant called Kim again and told her that he had two girls with him. Kim agreed to go out, and defendant told her that they would "go have some coffee and talk."*fn2
Kim instructed the gate person at her condominium complex to let her visitors in, went to the parking lot and got into the back seat of Claudia's white Honda behind the driver. Defendant was in the front passenger seat. Kim testified that she did not know the woman who was driving or the woman in the back seat.
Joseph Valdivia, the gatehouse security officer at Independence Harbor in Edgewater, corroborated that on November 18, 1997, at approximately 3:00 a.m., a white car with an Asian woman driving and a man in the front passenger seat arrived, and the man said that they were going "to pick someone up" at Kim's address. Valdivia contacted Kim, who directed him to let the car in, which he did. Approximately five minutes later, Valdivia noticed that the same car, with four people in it, left the complex.
Kim and defendant agreed that the car drove down River Road, made a left turn, and turned left onto a dead end street that was blocked at the end with barricades. It was dark, but there was a street light.
According to Kim's testimony, they got out of the car, and Kim asked defendant what the favor was that he needed. Defendant then pushed, slapped and hit Kim on her shoulders. She moved backwards, and defendant began kicking her legs. The woman who had sat in the back seat said, "You're not hitting her hard enough." Defendant then pushed Kim down over a barricade and onto the ground. Kim asked defendant what was wrong, but he did not respond.
Kim testified that the woman from the back seat sat on Kim's knees. Defendant pinned Kim's shoulders down with his elbows and held her hands above her head. Kim struggled but could not free herself. The driver of the car took a sharp, shiny, silver object out of her pocket and cut Kim's right leg, scalp and face. Kim testified that the two women were very petite and could not have restrained her without Ko's help. After the attack, defendant and the two women got into the car and left. Kim did not testify as to where each of her assailants sat in the car as it departed.
Defendant's version differed considerably from Kim's. According to defendant, he was "confused as to why Claudia had stopped the car" in a deserted area. However, when they got out of the car, he told Kim that he wanted Claudia to see for herself that "there is nothing going on between us." Kim said, "this is what you got me out of my apartment in the middle of the night for? I mean, your girlfriend is so insecure . . . that she has to put you through all this?" According to defendant, a "heated dialogue" ensued between Claudia and Kim, which escalated to yelling and cursing. Kim said "I could have Ed back whenever I want him back." Defendant told Kim to go home and pushed her away in an attempt to urge her to leave. After resisting initially, Kim started to walk away.
Defendant contended that he then walked toward the car. He denied punching, slapping or kicking Kim. According to defendant, Claudia and Young Joo ran after Kim; Young Joo pushed Kim's back and she fell. Claudia and Young Joo jumped on Kim, and Claudia yanked Kim's hair. Defendant, Claudia and Young Joo then returned to the car, and defendant drove back to his apartment. Defendant was aware that there had been a fight and that Claudia and Young Joo "had sort of beat Diane up." Defendant maintained that what happened was "unexpected" and "a total surprise." He had "nothing to do with Diane getting, you know, hurt."
On cross-examination, defendant was confronted with his prior inconsistent statement to the police shortly after his arrest. At that time, defendant claimed that nothing happened to Kim. He told police that he and the Seong sisters had an uneventful meeting with Kim and then dropped her off unharmed, at a shopping plaza near her home.
Kim testified that after the attack she walked home, which was less than one mile away. She was "drenched in blood" and had to wipe the blood away from her eyes so she could see. She tried to get help from motorists, but no one ...