On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-1229.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2008
Before Judges Winkelstein and Fuentes.
Defendant James Burnett was tried before a jury and convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), by purposely attempting to cause significant bodily injury to the victim. The same jury acquitted defendant of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon other than a firearm, N.J.S.A. 2C:39-5(d). Sitting as the trier of fact, the trial judge found defendant guilty of the disorderly person offense of simple assault, N.J.S.A. 2C:12-1(a), against a woman named Sandra Hicks. The court continued defendant's bail status pending sentencing.
Defendant failed to appear for sentencing, and the court issued a bench warrant for his arrest. Defendant was arrested in California in May 2004 for offenses committed in that State. After serving his sentence, California authorities turned defendant over to New Jersey's custody in July 2006.
Prior to sentencing on the New Jersey offense, defendant moved for a new trial arguing that information revealed by his wife in a letter sent to the trial court constituted sufficient basis to set aside his conviction. On October 13, 2006, the court denied the motion. That same day, the court sentenced defendant to a term of five years. We gather the following facts from the evidence presented at trial.
Defendant was separated from his wife at the time of the incident leading to his conviction. On the evening of February 7, 1999, defendant returned his young daughter to her mother's custody after spending the weekend with the child. On that same night, his wife telephoned her friend Sandra Hicks to complain that defendant had returned the child sick and in need of medical attention.
Hicks advised her to call Pamela Lee, a licensed practical nurse. Lee, who had not previously met defendant, was at home recuperating from carpal-tunnel surgery and had her right arm and hand in a cast. At Hick's request, Lee agreed to give defendant's wife medication for the child.
Lee was waiting on the porch of her house when defendant and his wife arrived. The wife got out of the vehicle to get the medicine; defendant remained in the car. At this point, Lee and defendant began to argue. Lee called down from the porch and berated defendant for not taking "the baby" to the hospital when he knew that his wife was unemployed and lacked medical insurance. Defendant responded in kind, yelling obscenities at Lee, and urging her to mind her own business. Defendant's wife intervened and asked both sides to refrain; defendant apparently heeded his wife's advice, and drove away.
Hicks testified that she and Lee had been on the telephone immediately before defendant arrived, and she remained on the line while the argument ensued. Hicks had driven to Lee's house earlier that night to make sure that she was fine. Responding to Hicks's concerns, Lee agreed to accompany her to defendant's wife's mother's house to make sure she was also fine. No one answered the doorbell when they arrived, so they decided to wait in the car.
Defendant and his wife arrived about fifteen to twenty minutes later. Hicks got out of her car and walked over to defendant's car. She immediately began to argue with defendant and his wife, exhorting her to leave defendant because he was "no good." After a few minutes, Lee joined in the argument. She testified that at this point, Hicks and defendant were still "hollering and screaming back and forth."
Defendant and Hicks eventually finished arguing. As defendant began to drive away, Lee hit the rear of his car with her left hand. Defendant immediately jumped out of his car and yelled at her for "kicking" the car. Lee replied: "I didn't kick your car. I hit your car." Defendant then ran to the car's trunk and retrieved a stick.
Lee ran toward the house when she saw the stick. According to Lee, defendant chased her; when he caught up with her he began to beat her on her back and on the lower part of the back of her head until the stick broke. She then fell to the ground and lost consciousness for a few minutes. She testified that when she regained ...