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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...