On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-09-2301 and 05-09-2302.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Skillman and Graves.
Defendant was indicted for second-degree burglary, in violation of N.J.S.A. 2C:18-2, and second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1). A jury found him guilty of burglary and the lesser-included offense of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7). The trial court sentenced defendant to a nine-year term of imprisonment for the burglary, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and merged defendant's conviction for aggravated assault into his conviction for burglary.
The burglary and assault were committed on July 1, 2005. The victim was defendant's former girlfriend, Tonya Peterson, with whom he had two children, aged one and two. The parties were not living together at the time of the offenses.
According to Peterson, around 8 a.m., as she was getting ready to go to school and take the children to day care, defendant broke into her apartment, using a butter knife to pry loose the lock to the front door. Defendant then attacked her, punching and kicking, stomping on her face and chest, putting his fingers in her throat and trying to strangle her. This assault took approximately five minutes. After defendant left the apartment, Peterson called 9-1-1. The police came to her apartment and brought her to the hospital, where she was treated for about an hour and a half. Peterson did not suffer serious injuries as a result of the assault.
Peterson was also allowed to testify about another assault defendant allegedly committed upon her on June 28, 2005, three days before the July 1st burglary and assault. In that prior incident, which also occurred in the early morning when Peterson was going to school, defendant was standing outside her apartment when she left with the children to walk to a bus stop a block away. Defendant walked alongside Peterson and when they arrived at the bus stop, he started threatening her and gesturing as if he was going to punch her. He allegedly said: "Next time you try to leave that apartment I'm going to have those doors jammed up, and I'll set that whole house on fire." Peterson then called the police on her cell phone. At this point defendant struck her, knocking her and her infant daughter, who was strapped to the front of her body, to the ground. Defendant also allegedly smashed Peterson's cell phone. The police responded to the scene, but no criminal charges were filed as a result of this incident.
The police apprehended defendant on July 3, 2005, two days after the burglary and assault, as he was walking back and forth on the street on the same block where Peterson's apartment is located.
Defendant did not testify or present any other evidence at his trial.
On appeal, defendant presents the following arguments:
POINT I: THE TRIAL JUDGE IMPROPERLY DENIED
THE DEFENSE'S REQUEST FOR A JURY INSTRUCTION OF THE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS.
POINT II: THE TRIAL JUDGE ERRED IN ADMITTING
THE 404(b) EVIDENCE AND IN ALLOWING THE PROSECUTOR TO INTRODUCE OTHER EXTRINSIC EVIDENCE OF PRIOR BAD ACTS.
(Partially Raised Below).
A. THE TRIAL JUDGE ERRED IN FINDING THE STATE MET ITS BURDEN IN ADMITTING 404(b) EVIDENCE OF DEFENDANT'S ASSAULT ON JUNE 28, 2005.
B. THE TRIAL JUDGE SHOULD HAVE SUA SPONTE STRUCK THE PROSECUTOR'S QUESTIONS WHICH SUBSTANTIALLY IMPUGNED DEFENDANT'S CHARACTER
POINT III: THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We reject these arguments and affirm defendant's conviction and sentence.
Defendant's first argument is based on a question the jury asked during deliberations. In its instructions, the trial court submitted third-degree aggravated assault and simple assault to the jury as lesser-included offenses of second-degree aggravated assault. The court did not give the jury any lesser-included offense instruction with respect to the burglary charge. Defendant did not object to the court's omission of such an instruction.
Shortly after the beginning of its deliberations, the jury asked the following questions:
One, what are the definitions of second and third degree burglary? Does second degree burglary imply any of the three levels of assault that the jury must choose between?... Secondly, is it an option for the jury to find the defendant guilty of third degree burglary.
At this point, for the first time, defense counsel requested the court to instruct the jury with respect to criminal trespass, as a lesser included offense of second-degree burglary. Defense counsel did not argue that there was any basis for instructing the jury with respect to third-degree burglary. His only argument was that the jury could find that defendant had made an unprivileged entry into Peterson's ...