On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-03-0652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Parrillo and Messano.
Indicted for, among other things, second-degree aggravated assault of Raymond Selvaggi, N.J.S.A. 2C:12-1b(1), defendant George Monroe was found guilty by a jury of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1a; possession of a weapon for the purpose of using it unlawfully against R.S. and/or D.R., N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. He was sentenced to a three-year term on the possession for an unlawful purpose offense, and to concurrent terms of one-year for unlawful possession of a weapon and six months for simple assault. Defendant appeals. For the reasons that follow, we vacate the simple assault conviction and sentence thereon and affirm the judgment of conviction in all other respects.
According to the State's proofs, on September 9, 2006, at approximately 12:30 a.m., Daniel Rosano and Raymond Selvaggi*fn1 were walking to Selvaggi's residence at 501 Grand Avenue in Asbury Park. As the two approached the front entrance of the home, defendant snuck behind them and struck Selvaggi in the face with a brick. Both men turned around and faced defendant, who announced "this is a robbery" and struck Selvaggi with a glass bottle.
Rosano grabbed defendant and, while struggling with him, told Selvaggi to call the police. As Selvaggi ran inside and called 9-1-1, defendant fled. Rosano pursued defendant because he "didn't want him to get away with this crime," and during the ensuing chase, defendant periodically stopped to strike Rosano with the bottle. During one of these attacks, Rosano managed to take the bottle from defendant and strike defendant with the bottle. Defendant fled into a dark alleyway, at which point Rosano stopped his pursuit.
Rosano observed police lights and yelled to alert the police to his location. Officers instructed Rosano to remain outside the alley; the officers then entered the alley and apprehended defendant. Rosano described the incident to the police and identified defendant as the man who had attacked him. As a result of the confrontation, Selvaggi suffered a split lip, as well as soreness and swelling of his head, arms, and hands. Defendant, who was bleeding from the forehead at the time, was taken to the hospital where he received six stitches.
Shortly thereafter, Rosano went to the Asbury Park Police Station and gave a formal statement describing the incident. Officers escorted Rosano to the area defendant was apprehended and, with Rosano's assistance, police recovered the bottle defendant used to facilitate the assault. Police then responded to 501 Grand Avenue, and with Selvaggi's assistance, recovered the brick defendant used to strike Selvaggi.
Defendant offered a different account at trial. According to defendant, on the early morning in question, he was walking home when he bumped into Rosano, who was accompanied by Selvaggi and said "excuse me." When Rosano replied that he looked good, defendant responded "I'm not a homo." Monroe then proceeded on his way home, but three or four blocks later, was hit in the head with a bottle by Rosano. Defendant lost consciousness, but awoke when the police arrived.
Evidently crediting the State's version, the jury convicted defendant of the lesser-included offense of simple assault as well as the two weapons offenses charged. On appeal, defendant raises the following issues:
I. THE JUDGE INSTRUCTED THE JURY THAT THEY COULD CONVICT DEFENDANT FOR ASSAULTING SOMEONE NOT NAMED IN THE INDICTMENT.
II. DEFENDANT'S PRIOR CONVICTIONS WERE TOO REMOTE TO HAVE BEEN PERMITTED TO BE ...