On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Indictment No. 05-09-1339.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Chambers.
Defendant appeals from his convictions for aggravated assault and related weapons charges arising out of the stabbing of two men in a bar in Paterson. At trial he was identified as the person who did the stabbing by the two victims as well as by an off-duty sheriff's officer. On appeal, defendant contends that the trial court erred in failing to conduct a Wade hearing and failing to give an identification charge. We find no plain error in the failure to conduct a Wade hearing. While we concur that the trial court should have given an identification charge, failure to do so was not plain error in the context of this case. Accordingly, we affirm the convictions.
During the early morning hours of June 11, 2005, an argument broke out at a pool table in a Paterson bar, and defendant was involved in a fight outside the bar. Defendant left the premises and then returned to the bar with other friends.
The particulars of what happened next are in dispute. The State maintained that in an altercation outside the bar, defendant stabbed one victim, Stanley Ramirez. Defendant then entered the bar holding a knife and stabbed the second victim, Oscar Rosario, three times in the back and side. Defendant was then hit over the head with a bottle by a woman. In his trial testimony, defendant acknowledged that he had been beaten up outside the bar and that he went back to the bar with his friends. He contends that as soon as he went back into the bar, he was hit over the head with a bottle, and he does not know what happened after that. He denied having a knife.
Herbert Cruz, an off-duty sheriff's officer who had been at the bar, spoke to defendant before the first fight; he saw defendant in the first fight outside the bar; he saw defendant enter the bar the second time with a knife in his hand; and he witnessed defendant stab Rosario inside the bar. Cruz provided a description of the person who did the stabbing to the police. When the police learned that a person matching that description was receiving medical treatment at a local hospital, the police took Cruz to the hospital, where he identified defendant as the person who stabbed the victim inside the bar.
At the hospital that night, defendant was also presented to each of the victims, and they both identified defendant as the person who stabbed them. Each had observed defendant more than once at the bar that night. Ramirez saw defendant when he was stabbed and then he followed defendant into the bar, where he saw defendant swing a knife at Rosario. Rosario had observed defendant participate in the first fight outside the bar earlier in the evening, and he saw defendant with a knife in the bar before he was stabbed. At trial, all three witnesses identified defendant as the person who did at least one of the stabbings.
At trial, defense counsel asserted a twofold defense. First, he argued that defendant was not the person who did the stabbing and that the witnesses were mistaken in identifying him. Second, defense counsel argued that even if defendant had done the stabbing, he did not act purposely to cause serious bodily harm.
The jury rejected these arguments and found defendant guilty of second degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1) (counts one and two), third degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(d) (count three), and fourth degree possession of a weapon in violation of N.J.S.A. 2C:39-5(d) (count four). On January 12, 2007, defendant was sentenced to a term of six years with an eighty-five percent period of parole ineligibility on each aggravated assault conviction, to run concurrently.
N.J.S.A. 2C:43-7.2. Count three was merged into counts one and two, and defendant was given a concurrent term ...