On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-01-0140.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C. S. Fisher and C. L. Miniman.*fn1
Defendant was convicted of aggravated assault, as a lesser-included offense of murder,*fn2 and of three counts of official misconduct.*fn3 He was sentenced to the custody of the Commissioner of Corrections for eight years with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the aggravated assault and to concurrent seven-year sentences for each of the official misconduct convictions. The concurrent sentences for the misconduct were made to run consecutive to the sentence for aggravated assault. The judgment also provided that defendant forfeited his office as a Weehawken police officer, pursuant to N.J.S.A. 2C:51-2.
On this appeal defendant argues:
COUNTS 9, 10 AND 11 OF THE INDICTMENT VIOLATED DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT AND ART. I, PARA. 10 OF THE N.J. CONSTITUTION, AND THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THOSE COUNTS, AND IN FURTHER DENYING HIS MOTION TO SEVER THOSE COUNTS FOR TRIAL.
A. Counts 9-11 of the Indictment violate Defendant's right under the "Nature and Cause" clause of the Sixth Amendment and Art. I, para. 10 of the New Jersey Constitution, and the trial court erred in failing to dismiss said counts
B. The trial court erred in failing to sever Counts 9-11, alleging "false and misleading" statements, from the remaining counts of the indictment
THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY AS "LESSER INCLUDED OFFENSES" OF MURDER "RECKLESS" OFFENSES, INCLUDING, OVER OBJECTION, AGGRAVATED ASSAULT; AND HIS INSTRUCTIONS ON SELF-DEFENSE AS APPLIED TO "RECKLESS" OFFENSES WERE CONFUSING, SELF-CONTRADICTORY, INCOMPLETE, AND ERRONEOUS AS A MATTER OF LAW, REQUIRING A REVERSAL ON COUNT 1.
A. The trial court erred in instructing the jury as to any "reckless" offense, and in particular to any species of "assault" as "lesser included" offenses of "murder"
B. The trial court's jury instructions on self-defense and police justification [a]re erroneous, confusing and incomplete, and improperly instructed the jury that self-defense was not an element of a charged "reckless" offense, the absence of which the State must prove beyond a reasonable doubt
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS, AND HIS RULINGS ON THE ADMISSIBILITY OF EVIDENCE DEPRIVED DEFENDANT OF A FAIR AND IMPARTIAL VERDICT.
A. Defendant's Motion to Suppress should have been granted, and the court's admission of evidence obtained as a result of wiretap orders issued by him ex parte following indictment prejudiced Defendant's right to a fair and impartial verdict
THE IMPOSITION OF SENTENCE AT THE UPPER RANGE OF A TERM FOR AGGRAVATED ASSAULT, AND THE IMPOSITION OF A CONSECUTIVE TERM FOR OFFICIAL MISCONDUCT WAS AN ABUSE OF DISCRETION.
Defendant was an off-duty police officer when he struck the seventeen-year-old victim, Jose Luis Ives, on July 16, 2003. Defendant insists he threw one "single defensive blow to the jaw" of the victim resulting in an "unprotected fall to the street," and causing the victim's head to strike the ground. We conclude that the question of causation warranted the instructions on "lesser included" offenses, reject defendant's contentions, and conclude that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2).
Defendant was indicted for the murder of Jose Luis Ives, in violation of N.J.S.A. 2C:11-3(a) (count one); official misconduct by use of excessive force against Jose Luis Ives, Franklin Zambrano and Ivan Ives, in violation of N.J.S.A. 2C:30-2 (counts two, four and six); aggravated assault of Franklin Zambrano and Ivan Ives, in violation of N.J.S.A. 2C:12-1(b) (counts three and five); possession of a weapon (a broomstick handle), in violation of N.J.S.A. 2C:39-5(d) (count seven); possession of the weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count eight); and official misconduct by preparing a false operation report, supplementary investigation report and juvenile delinquency complaint, in violation of N.J.S.A. 2C:30-2 (counts nine, ten and eleven).
After the denial of defendant's pretrial motions, the matter was tried to a jury. The trial judge dismissed count five, aggravated assault of Ivan Ives, after the close of all the evidence. The jury found defendant not guilty of murder, aggravated manslaughter, and reckless manslaughter of Jose Luis Ives, but guilty of aggravated assault of Jose Luis Ives, by "purposely, knowingly or recklessly caus[ing] serious bodily injury or purposely attempt[ing] to cause serious bodily injury," as a lesser-included offense of murder on count one.*fn4
The jury also found defendant guilty of the official-misconduct counts regarding the filing of the false documents (counts nine, ten and eleven). Defendant was found not guilty on the other counts.
On July 16, 2003, Jorge and Ivan Ives, then ten and eleven years old respectively, and Franklin Zambrano, age thirteen, were walking through the parking lot of a senior-citizens building in their neighborhood at approximately 11:00 p.m. They were with their friend Roland Castillo, going to meet the Ives's brother, Jose Luis, and his girlfriend Cathy Zambrano, Franklin's sister, on the other side of the lot in Weehawken.*fn5
Jorge and Ivan testified that a car alarm was going off as they were walking, but initially denied touching the car or activating the alarm. Ivan later testified that the four boys met Jose Luis and Cathy "[b]efore we hit the alarm."
Jorge, Ivan and Franklin testified that defendant appeared in the parking lot, approached the four boys with a section of a broken broomstick, stated he was an off-duty police officer, and, in an angry tone, asked or yelled whether or why they were messing around with his car. The three boys said that defendant swung the stick at Franklin, but Franklin jumped out of the way, and the stick caught and "cut his shirt."
Defendant then "grabbed" Ivan and pointed the stick at his neck. According to Jorge, defendant then said he was an off-duty police officer and "that means he could kick our asses." Franklin testified that defendant said as an off-duty officer "he could beat the shit out of you." Jorge and Ivan recalled that defendant told the boys to leave.
The four boys left the parking lot, met Jose Luis and Cathy, and walked Cathy and Franklin home. Jorge and Ivan testified that as they, Jose Luis and Castillo were thereafter returning to the Ives's home, defendant and defendant's girlfriend were following them. The group stopped in front of the Ives's building, where defendant approached Jose Luis and gave him "a hard look." Jorge and Ivan both recalled that Jose Luis asked "what happened," and that defendant punched Jose Luis in his jaw.*fn6 The brothers said that Jose Luis landed on his back, unconscious, and that defendant hit Jose Luis' head against the pavement when Jose Luis tried to get up. According to Ivan, as Jose Luis tried to "stand up to regain consciousness, [defendant] slammed his head against the concrete," and "banged [his] head against the ground."
Yakira Batista, who lived in Union City a few doors down from the Iveses, was sitting in front of her house on July 16, 2003, between 11:30 p.m. and midnight. Batista saw defendant punching Jose Luis in the face and "hitting" him while on the ground.
Jorge recalled that defendant ran away, and that defendant's girlfriend "went across the street" and talked on a cell phone. Ivan recalled that defendant said "you better go get some ice" and left.
Jorge told Ivan to get their father, and Ivan went inside. When he returned with their father, Ivan saw defendant's girlfriend across the street, and later saw her talking on a cell phone.
Jorge and Ivan noticed that defendant returned after the ambulance and police arrived. Union City police officer Ruben Rodriguez, who arrived at the scene after the ambulance, noted that defendant arrived at the scene ten or fifteen minutes later.
Defendant's "Operation Report," "Supplementary Investigation Report," and "Juvenile Delinquency Complaint," all dated July 17, 2003, were admitted into evidence. Defendant's "Operation Report" stated that, while off duty on July 17, 2003, at 11:56 p.m., defendant was "confronted by a male who assaulted me. The necessary force was then [sic] used to effectuate and [sic] arrest. The actor was taken to the hospital from injuries sustained as a result of this action." According to the report, defendant requested treatment "for stress related trauma of this incident," was "unable to leave a detailed report" at the time, and reported he would be able to give a complete report within "the next day or two."
Defendant's "Supplementary Investigation Report" stated that defendant and his girlfriend, Selina Valenzuela, while standing outside the doorstep of the home of her sister, Amanda Valenzuela, at Maple Street and Ridgely Place in Weehawken, "witnessed 4 males tampering and setting alarms on cars." According to the report, Amanda informed defendant that these same males "had been tampering and setting off alarms and vandalizing that same vehicle several times that night." Defendant borrowed Amanda's "cordless" telephone and reported the offenses to the Weehawken Police Department.
Defendant continued, in his "Supplementary Investigation Report," that he approached the offenders, identified himself as a police officer, told them to "stop what they were doing and to go home before they got into trouble with the police." The boys then left. Defendant's report further stated that, about fifteen minutes later, while walking on Pleasant Avenue with Selina and their dog, he saw three of the same males from the earlier incident with a fourth male who had not been present earlier. The group stopped, and as defendant and Selina were walking past ...