On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0244.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lyons.
Defendant Osahetin Oliha appeals from a February 14, 2006 judgment of conviction for aggravated assault, contrary to N.J.S.A. 2C:12-1b(1). After reviewing the record in light of the contentions advanced on appeal, we affirm.
On November 22, 2003, a grand jury indicted Oliha for aggravated assault, N.J.S.A. 2C:12-1b(1) and robbery, N.J.S.A. 2C:15-1. On August 9, 2005, the robbery charge was dismissed. Before the matter proceeded to trial, defendant elected to waive his right to a trial by jury. Accordingly, on October 25 and 26, 2005, the aggravated assault charge proceeded before Judge John S. Triarsi, without a jury. Based on the evidence presented, the judge found Oliha guilty of second degree aggravated assault. Thereafter, on February 10, 2006, Oliha made a motion for a new trial which was denied as untimely. That same day, the judge sentenced Oliha to five years in prison with a period of parole ineligibility for eighty-five percent of that sentence, N.J.S.A. 2C:43-7.2. This appeal ensued.
The pertinent facts are as follows. On November 22, 2003, Oliha pulled into an Exxon station on Route 22 in Union, where Raghbir Singh Nandha was working alone. When Oliha arrived at the gas station, he first drove his car to an area where there were vacuums. Oliha then approached Nandha, gave him ten dollars, asked him for four quarters and told him he wanted nine dollars worth of regular gas. After receiving the change and returning to the area near the vacuums, Oliha then moved his car to a gas pump. Soon after Nandha began pumping the gas, Oliha accused him of putting in the wrong type of gas and tried to stop the pump. This led to an altercation between the two men.
Oliha testified that Nandha "shoved [him] real hard" after he stopped the pump and that later "[Nandha] walked up on me and spit in my face, snuck up on me, and I reacted, you know, I punched him, I kicked him."
Nandha, with the assistance of an interpreter, testified that Oliha spit on him, prompting him to walk to his office so he could write down Oliha's license plate number. He further testified that: "When I was walking towards [the office] he pushed me, and that is all I remember. After that, I don't remember anything." The next thing Nandha remembered was waking up in an ambulance enroute to the hospital. When Nandha regained consciousness, he had cuts on his face, a cracked tooth and his face was swollen.
The additional witnesses who testified for the State were Chantell Brochu, a Union Township Police Officer dispatched to the scene of the incident, and Antonio Queylin, a gas station patron who witnessed part of the incident. Officer Brochu testified that when she arrived at the scene, Nandha was "on the ground flat on his back" and he was "laying in a pool of blood, his face was bloodied, and he was dazed and unresponsive." Officer Brochu further testified that she saw Queylin and Oliha at the scene. According to Officer Brochu, Oliha was agitated, flailing his arms and yelling "he provoked me." Officer Brochu observed that Nandha had several large wounds on his head, he was bleeding from his mouth and his face was very swollen.
Queylin testified that when he arrived at the gas station, he observed Oliha "beating up" Nandha. He saw Oliha punch Nandha wildly in the upper body and head, eight to ten times, with a strong level of force. Queylin stated that Nandha could barely defend himself and he did not strike back. Queylin indicated that Nandha fell to the ground and Oliha "kicked [Nandha] about two times. Then he stomped him about two times."
Two other portions of the trial are relevant to this appeal. First, at the beginning of the trial, Judge Triarsi considered a waiver of trial by jury form, signed by Oliha. Oliha, a thirty-four year old biologist with a Bachelor's Degree from Rutgers, acknowledged that his signature was on the form and that he understood that by signing the waiver form, he was allowing the judge alone to decide whether he was guilty or not guilty, rather than leaving that decision to a jury. Oliha stated that he discussed the waiver with his attorney and that he did not have any questions.
Second, at the end of Nandha's testimony, Oliha wanted to ask certain questions. The ...