On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-12-03692.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Sabatino and Simonelli.
A grand jury indicted defendant for first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one);*fn1 second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count three). A jury convicted defendant under count two of the lesser-included offense of third-degree aggravated assault upon a county corrections officer, N.J.S.A. 2C:12-1b(5)(h). Judge Giles sentenced defendant to an extended seven-year term of imprisonment. The judge also imposed the appropriate assessments and penalties and suspended defendant's driver's license for twenty-four months.
On appeal, defendant raises the following contentions:
THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THE JURY THAT "MERE PRESENCE" ALONE COULD NOT SUSTAIN A CONVICTION (Partially Raised Below).
THE DEFENDANT'S SENTENCE IS EXCESSIVE. We reject these contentions and affirm.
The following facts are summarized from the record. Defendant and Nadir Britt were inmates at the Essex County Correctional Facility. At approximately 12:30 p.m. on September 13, 2004, Essex County Corrections Officer Patrick Whalen was on duty in the E pod. He was alone and unarmed. Lunch had just been served in the kitchen of the E pod, and the specially assigned kitchen staff was cleaning up. Except for the assigned workers, no other inmates, including defendant and Britt, were permitted in the kitchen.
Whalen was sitting at his desk when he heard loud banging coming from the kitchen. He left his desk to investigate the banging. He observed defendant in the kitchen banging on the glass, gesturing to inmates in other pods. Such gesturing, which indicated gang signals, was not permitted.
Whalen ordered defendant numerous times to leave the kitchen. Defendant repeatedly refused, stating that Whalen was not in charge and could not tell defendant what to do. Whalen touched defendant's arm, intending to escort him from the kitchen. Defendant spun around and threatened Whalen. Britt then approached Whalen from behind and struck him in the back of the head. Defendant then punched Whalen in the front of his head. Whalen struggled with defendant and was pushed to the ground. Defendant and other inmates then kicked and punched Whalen until he lost consciousness.
As a result of the assault, Whalen tore both meniscsal cartilages in his knee, requiring surgery. He also suffered depression, anxiety and post-traumatic stress disorder. He was placed on anti-anxiety and anti-depression medication, and ...