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State v. Lazu


July 11, 2008


On appeal from the Superior Court of Warren County, Law Division, Indictment No. 06-07-259.

Per curiam.


Submitted May 19, 2008

Before Judges Gilroy and Baxter.

Tried to a jury, defendant was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). Following the jury's verdict, defendant filed a motion for a new trial, contending that the trial judge had erred by prohibiting him from cross- examining Lefkovitz, the victim of the assault, about Lefkovitz using cocaine one day prior to appearing before the Grand Jury. On January 29, 2007, the trial judge entered an order, which was supported by a written opinion, denying the motion. On March 2, 2007, defendant was sentenced to a term of five years of imprisonment, and was directed to pay $11,987.98 in restitution to Lefkovitz. All appropriate fines and penalties were imposed. Defendant appeals, and we affirm.

Because defendant does not contend that the verdict was against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other facts as necessary in addressing the issues.

At approximately 1:30 a.m. on January 11, 2006, Lefkovitz observed defendant walking away from the home of Jessica McKenna, defendant's former girlfriend. Lefkovitz, in his attempt to greet defendant who he had known, was struck and knocked to the ground by defendant, causing multiple fractures of his nose and a severe laceration of his eye. As a result, Lefkovitz underwent two surgeries to rectify breathing problems caused by the injury.

Because McKenna had telephoned the police concerning someone pounding on her door sometime prior to the assault, the police arrived at the scene rather quickly. After Lefkovitz informed Patrolman Bittenmaster of the assault, defendant was found by Bittenmaster approximately one-half mile from the place of the incident. Although Bittenmaster did not arrest defendant at that time, he observed that defendant had "small blood dots" on his knuckles. On Lefkovitz signing a complaint, defendant was arrested, indicted, and tried.

On appeal, defendant argues:





Defendant argues in Point I that the trial court erred by improperly barring him from cross-examining Lefkovitz concerning Lefkovitz's history of substance abuse. Defendant contends that cross-examining Lefkovitz regarding his substance abuse could have affected the jury's assessment of Lefkovitz's credibility. We disagree.

A defendant's right in a criminal proceeding to confront witnesses against him or her is guaranteed by both the Federal and New Jersey Constitutions. State v. Budis, 125 N.J. 519, 530 (1991) (citing U.S. Const. amend. VI; N.J. Const. art. 1, ¶10).

The right of confrontation affords a defendant the opportunity to question the State's witnesses, protects against improper restrictions on the questions asked during cross-examination, and affords the accused the right to elicit favorable testimony on cross-examination. Id. at 530-31. "It does not matter that the likelihood of defendant's contentions 'might be slim.'" State v. Wormley, 305 N.J. Super. 57, 66 (App. Div. 1997) (quoting State v. Crudup, 176 N.J. Super. 215, 221 (App. Div. 1980)), certif. denied, 154 N.J. 607 (1998). On cross-examination, a defendant is entitled to challenge "a witness's perceptions and his ability to make observations." Ibid. (quoting State v. Zenquis, 251 N.J. Super. 358, 367 (App. Div. 1991), aff'd, 131 N.J. 84 (1993)).

However, the right to cross-examination does not guarantee a defendant an "unlimited cross-examination of a witness." State v. Harvey, 151 N.J. 117, 188 (1997). "The scope of cross-examination . . . rests within the sound discretion of the trial court." Ibid. "[T]rial courts 'retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues . . . or interrogation that is . . . only marginally relevant.'" Budis, supra, 125 N.J. at 532 (quoting Del. v. Vans Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed. 2d 674, 683 (1986)). On appeal from an evidentiary ruling controlling or limiting the right of cross-examination, we will not interfere with the trial court's determination, except on a finding of "clear error and prejudice." State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002).

On April 28, 2006, Lefkovitz was sentenced to probation for a term of eighteen months, and for sixty days in the Warren County Correctional Center on a conviction of fourth-degree theft by deception. On October 20, 2006, approximately one month prior to defendant's trial, Lefkovitz was re-sentenced, having violated his probation. His prior probation term was revoked, and Lefkovitz was re-sentenced to probation for a term of two years and time served. The trial court's statement of reasons on re-sentencing indicates that Lefkovitz had violated probation by testing positive for cocaine on July 18, 2006. Prior to the commencement of defendant's trial, the judge ruled that Lefkovitz's credibility could be impeached by introduction of evidence of his 2006 criminal conviction, as well as his 1992 convictions for criminal contempt and burglary.

On direct examination, Lefkovitz testified as follows. Lefkovitz had known defendant for approximately one or two years and had last seen defendant a couple of weeks or a couple of months prior to the date of the assault. Between 1:15 to 1:30 a.m. on the day of the incident, Lefkovitz observed defendant walking down the stairs of McKenna's home. Recognizing defendant, Lefkovitz stated: "Hey, Lou, what's up?" In response, defendant continued down the stairs and replied: "[h]ey, I'm going to F you up," after which defendant struck him without any other warning.

On cross-examination, Lefkovitz acknowledged that he had testified differently before the Grand Jury on July 19, 2006, when he had testified that defendant never responded to his greeting before striking him. Lefkovitz confirmed that when he was asked by a Grand Juror whether defendant had said anything before striking him, he had answered "[n]ope. Didn't say a word." However, on re-direct, Lefkovitz testified that the statement contained in the probable cause affidavit, which he had provided at the time he signed the complaint against defendant, was consistent with his trial testimony: "[w]hen I discovered Mr. Lazu coming down the stairs[,] I said, 'what's up?' He said, 'I'm f[]ing you up' and struck me . . . for no reason."

During cross-examination, Lefkovitz was asked whether he had taken any drugs prior to the time of the incident or whether any drugs were present at the card game he had attended the prior evening. Lefkovitz answered both questions in the negative. Lefkovitz was also asked whether he was "under the influence of anything when [he] testified in front of the

[G]rand [J]ury." Lefkovitz denied that he was, but acknowledged that he had used cocaine in June 2006, a month before he appeared before the Grand Jury. After Lefkovitz denied using cocaine in July 2006, defense counsel commenced to question him concerning his violation of probation, particularly the statement of reasons attached to the judgment of conviction, which indicated that he had tested positive for cocaine on July 18, 2006, one day before his Grand Jury appearance. On objection by the State, the trial judge prohibited defense counsel from continuing to cross-examine Lefkovitz concerning his past use of cocaine.

In addition, Lefkovitz was questioned on cross-examination about whether he had consumed alcoholic beverages on the evening before the assault. Lefkovitz denied consuming alcoholic beverages that evening, but conceded that at the time of the assault, he considered himself a social drinker, which he defined as drinking between two and six alcoholic beverages, once or twice a week. Lefkovitz further acknowledged that his testimony concerning whether his drinking habits ran counter to the medical history noted in the hospital records from the morning of the assault, which indicated he had advised the triage nurse that he had consumed "four to five drinks a day." However, on re-direct, Lefkovitz stated that when he had informed the nurse of that information, he had understood her question to refer to his general drinking habits, not what he had consumed on the day of or the day before the assault.

In denying defendant's motion for a new trial, Judge John Pursel determined that there was no evidence of Lefkovitz having used cocaine or other drugs on the day of, or near the date of the incident. Concluding that any probative value of admitting evidence that Lefkovitz had used cocaine the day prior to appearing before the Grand Jury would have been outweighed by the risk of undue prejudice, the judge denied the motion for a new trial. "The [c]court felt it was clear that if such evidence was introduced, the prejudicial value would far outweigh any benefit concerning the credibility of the victim in light of his drug use." In addition, the judge stated, "[t]here was absolutely no reason on the record that this [c]court could find which would indicate any drug use contemporaneously with the assault which occurred six months prior to the Grand Jury testimony."

Defendant argues that, although there was no evidence that Lefkovitz had used cocaine or other drugs at the time of the assault, there was specific evidence regarding his drug use that could have affected the jury's determination of his credibility. Defendant contends that Lefkovitz had testified he had used cocaine in June 2006, but not in July, the month during which he had given testimony before the Grand Jury. The statement of reasons on his re-sentencing for violation of probation indicates that Lefkovitz had tested positive for cocaine on July 18, 2006, one day prior to appearing before the Grand Jury. Defendant asserts that "had the jury been presented with evidence that Lefkovitz lied regarding his cocaine use and that cocaine use occurred the day before he testified before the Grand Jury, it would have had a substantial adverse impact upon Lefkovitz's credibility," citing State v. Franklin, 52 N.J. 386 (1968) and Wormley, supra, 305 N.J. Super. 57. We find both cases distinguishable from the present matter.

In Franklin, the defendant was convicted of first-degree murder. The State's primary witness was Carrie Pitts. Prior to trial, the defendant had obtained an order to have Pitts submit to a psychiatric examination to determine her competency to testify. Franklin, supra, 52 N.J. at 387. After Pitts refused to submit to an examination, the trial judge denied defendant's motion seeking an order compelling her to do so. Id. at 387-88. Following his conviction, defendant appealed. The Supreme Court remanded the matter to the trial court, directing that Pitts submit to the psychiatric examination and for the trial judge to make a determination as to her competency. Id. at 380.

Following the psychiatric examination, the judge determined Pitts competent to testify. Because evidence at trial and on remand disclosed that Pitts was an alcoholic, who had past episodes of hallucinating while under the influence of alcohol to where she had been committed to Trenton State Psychiatric Hospital suffering delirium tremens and there was evidence of Pitts' consumption of alcohol on the date of the murder, the Court reversed. The Court determined that "Miss Pitts' addiction to alcohol would be entirely relevant on the question of the credibility to be assigned to her detailed testimony and apparent total recall of all that allegedly happened before, at and after the fatal attack upon [the victim]." Id. at 399.

The Court concluded "that the trial judge, in cutting short defense counsel's cross-examination of Miss Pitts when he sought to affect her credibility, visited substantial prejudice on defendant." Ibid. Further, the Court determined "[t]he jury did not have the benefit of what we now know of Miss Pitts' drinking habits, the physical and mental effects of alcohol upon her (including hallucinating), and her hospital admissions, so that it can reach an informed judgment as to whether her testimony was to be believed." Ibid.

In Wormley, defendant Wormley was convicted with two co-defendants of robbery and weapon offenses. William Nelson, the victim of the robbery and the State's primary witness, testified concerning the events surrounding the robbery, including identifying Wormley and co-defendant Eden as the two perpetrators who had waived guns in his face. Wormley, supra, 305 N.J. Super. at 60-61. The defendants sought to introduce evidence concerning Nelson's history of drug use for purpose of impeachment. The defendants had argued that the evidence of Nelson's past drug use was sufficient to have established that he had used drugs on the day of the robbery; and it was for the jury to have determined whether his perception or memory had been affected by the drugs. Id. at 64-65.

During an N.J.R.E. 104 hearing, evidence was presented that Nelson had at least eight prior convictions for drug offenses and had sought drug counseling. Nelson admitted that for three years prior to the incident, he had regularly used marijuana and heroin on weekends, but never during the week. He denied using either drug on the day of the robbery, which was a weekday. Id. at 65. The trial court, determining that Nelson was credible when he had testified at the Rule 104 hearing as to not having used drugs during the week, precluded defendants from cross-examining Nelson concerning his past drug use.

On appeal, we reversed, determining that although "evidence of Nelson's drug use was probably insufficient to establish drug use on the day of the robbery under the habit and custom rule," id. at 65, there was sufficient evidence to leave the question of Nelson's drug use on the date of the incident to the province of the jury. Id. at 67. We determined that the evidence established at the hearing indicated that Nelson "had a longstanding addiction to drugs and, indeed, even after the incident, required drug treatment." Ibid.

Acknowledging not only that Nelson had denied that his faculties were ever affected while using drugs, but also that the defendants had not presented any contrary evidence, we concluded that it was "not beyond the realm of a juror to conclude that one's ability to perceive and observe would be impaired to some extent." Ibid. We also discerned that a jury could infer that Nelson's faculties were impaired to a degree because of questionable post-robbery observations and conduct testified to by Nelson concerning the quantity of coats stolen, the number of guns used, and a misidentification via a photo lineup.

Here, contrary to Franklin where the witness, a known alcoholic, had consumed alcoholic beverages on the day of the murder, and contrary to Wormley, where the victim, an habitual drug user, implicitly used drugs within one week of the robbery, there is no evidence that Lefkovitz had used cocaine, or any other illicit drugs, on the day of the assault or close in time thereto. We do not find an abuse of discretion in the trial judge's determination that the "prejudicial value [of admitting the evidence] would far outweigh any benefit concerning the credibility of the victim in light of his drug use." See N.J.R.E. 403(a).

We do not discern that the barring of evidence of Lefkovitz's use of cocaine, six months post-assault, prohibited defendant from fully challenging the State's proofs of Lefkovitz's perception and his ability to make observations at the time of the assault. Wormley, supra, 305 N.J. Super. at 66. The trial judge did not prohibit defendant from cross-examining Lefkovitz concerning whether he had used drugs or alcohol on the day of, or in close proximity to, the day of the assault.

Defendant argues next that his sentence was manifestly excessive. Defendant contends that the trial judge erred by focusing almost entirely on factors personal to defendant, rather than to the crime. Defendant asserts that the imposition of a five-year period of incarceration in light of the facts of the crime "shocks the conscience." We disagree.

When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court should modify a sentence only when "the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

In imposing a sentence, a trial court should "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. However, aggravating and mitigating factors are not simply "to be accorded an equivalent value." State v. Hodge, 95 N.J. 369, 378 (1984). Rather, the focus around which the factors are to be weighed is the severity of the crime. Id. at 377. New Jersey's "sentencing statute contemplates a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002). Here, the judge found the following aggravating factors: N.J.S.A. 2C:44-1a(3) (risk that the defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). He did not find any mitigating factors. After determining that the aggravating factors "so substantially outweigh[ed] the mitigating factors because there was no excuse for what happened, the damage was serious and the damage was intentional," the judge sentenced defendant to a term of five years of imprisonment.

We have considered defendant's contentions and are satisfied that the sentence is neither manifestly excessive, nor unduly punitive, and does not constitute an abuse of discretion. O'Donnell, supra, 117 N.J. at 215-16; State v. Ghertler, 114 N.J. 383, 393 (1989); Roth, supra, 95 N.J. at 363-65. Defendant committed an unprovoked assault on Lefkovitz without warning, causing serious injury requiring two surgeries. Defendant has an extended criminal history, including two convictions of aggravated assault on a police officer, and three convictions of simple assault. We discern no reason to interfere with the trial judge's sentence.



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