December 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER B. NEIDERMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-08-1115.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Fisher and Baxter.
Defendant was charged with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), in connection with a physical encounter that occurred in his home with his girlfriend on May 28, 2005.
Following a trial, a jury found defendant guilty of third-degree aggravated assault. Defendant was later sentenced to a five-year probationary term conditioned upon his service of 364 days in the county jail.
In this appeal, defendant presents the following arguments:
I. THE COURT ERRED BY NOT DISSMISSING [SIC] THE AGGRAVATED ASSAULT CHARGES.
II. THE COURT ERRED BY NOT OVERTURNING THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT ERRORED [SIC] IN OVER RULING OBJECTION TO PROSECUTOR'S STATEMENT WHEREIN HE POSITED A REASON MERRILL'S BRUISED EYE WAS NOT WORSE WAS IMPROPERLY LEADING AND PREJUDICIAL.
IV. DEFENDANT'S SENTENCE WAS EXCESSIVE.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
At trial, the State called as witnesses the victim, an investigating police officer, and defendant's next-door neighbors. Defendant neither testified nor called any witnesses to testify.
The victim testified that, during the course of an argument, defendant indicated his desire to engage in sexual relations with her, forcibly removed her underwear and punched her in the eye with his fist. According to the victim, defendant also forced her down and, while straddling her body, choked her. When the victim pretended to lose consciousness, defendant stopped choking her, and, when defendant let her up, the victim ran out of the house and to a neighboring home. The neighbors testified that the victim's face was reddened and swollen. A police officer later photographed the victim's black eye and the abrasions around her neck; these photographs were admitted into evidence. The jury also heard testimony from both neighbors, one of whom went to defendant's home shortly after the incident to retrieve the victim's clothes. In recounting their conversation, the neighbor stated that defendant "was pretty upset," and denied hitting the victim. However, according to the neighbor, defendant admitted he "choked the shit out of her."
Defendant's argument that his motion to acquit should have been granted is without merit. In denying the motion, the trial judge observed that a favorable view of the State's evidence would have permitted a reasonable jury to find defendant guilty of aggravated assault beyond a reasonable doubt. Defendant's argument regarding the disposition of his motion appears to be largely based upon his contention that the victim did not testify truthfully. That contention misconstrues the trial judge's function in ruling upon a motion based upon Rule 3:18-1.
Even if there was substance to defendant's contention that the victim was not credible, the trial judge was nevertheless obligated to "giv[e] the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom." State v. Reyes, 50 N.J. 454, 459 (1967). In so viewing the victim's version, as amplified by the evidence provided by the investigating police officer, and defendant's neighbors, the trial judge correctly concluded that he was required to deny the motion to acquit because the State's evidence, if credited by the jury, would have permitted defendant's conviction.
For much the same reasons, defendant argues that the trial judge should have set aside the jury's verdict, claiming it was contrary to the weight of the evidence. Because defendant did not move for a new trial, that issue is not cognizable on appeal. R. 2:10-1. See also State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997).
We lastly observe that the sentence imposed is not shocking to the judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984).
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