On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0628.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2009
Before Judges Wefing and Yannotti.
Defendant was charged under Essex County Indictment No. 05-3-628 with conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b (count one); aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1b (count two); possession of weapons under circumstances not manifestly appropriate for such lawful uses as they may have, N.J.S.A. 2C:39-5d (counts three and five); and possession of weapons with a purpose to use such weapons unlawfully against the person or the property of another, N.J.S.A. 2C:39-4d (counts four and six). Defendant was tried to a jury, which found him guilty on all charges, and the trial court thereafter sentenced him to an aggregate ten-year term of imprisonment with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, challenging his convictions and the sentences imposed. For the reasons that follow, we affirm.
We briefly summarize the evidence presented at the trial of this matter. In September 2004, Darnell Notis (Notis) was employed by the Newark Housing Authority (NHA) as a repairman and assigned to work in the Seth [Boyden] Housing Complex on Frelinghuysen Avenue. At the time, Notis had been working at the Seth [Boyden] complex for about seven years. Notis testified that on September 29, 2004, he had "words" with a person known as "Face." Notis said that, during this verbal altercation, "Face's" demeanor was "hostile."
The following day, at about 12:45 p.m., Notis was on his way to lunch and he came in contact with "Face," defendant and another person. Notis testified that defendant was wearing a "hoodie." Defendant approached him and said, "where our shit at?" Defendant then struck Notis in the face with a brick. Notis said that he knew defendant because he lived in the housing complex and he was "[p]ositive" that defendant was the person who hit him in the face with the brick.
Notis fell to the ground and "Face" started beating him with a pipe. Notis said that "Face" hit him in the leg, face, head and "all over." He was able to escape and ran to the manager's office to call a police ambulance. According to the police report, Notis was bleeding profusely from the left side of his head.
Notis told the police that defendant and "Face" had hit him.*fn1 Notis was taken in an ambulance to Beth Israel Hospital, where seventeen "staples" were used to treat his injuries. Notis said that there was no doubt in his mind that defendant and "Face" were the persons who attacked him. Notis gave the police defendant's address because he "knew him as a kid that lived down in the projects."
In his direct testimony, Notis said that his jaw and ankle were fractured in the attack. He testified, however, on cross-examination that his jaw was not wired shut and he was told to put an ice pack on it. Notis stated that he did not receive follow-up treatment for his jaw.
Notis also stated that his ankle was not placed in a cast but he was told to stay off of his ankle. He asserted that he could not walk for several days. He said that he did not know the difference between a sprain and a fracture. In response to the court's question, Notis stated that he was not given crutches to use.
Notis was questioned about the statement that he gave to the police on October 6, 2004. Notis admitted that in his statement, he did not say that two of his co-workers were present when he had the verbal altercation with "Face." Notis also admitted that, in his statement, he said that the persons who attacked him had hoods pulled down over their faces.
Notis additionally was questioned about his testimony before the grand jury, in which he said that four people approached him when he was attacked. Notis said that the fourth person was his co-worker. Notis said that he told the police about the co-worker after the attack but did not mention the co- worker in the statement he gave to the police on October 6, 2004.
Darryl Cheeks (Cheeks) of the Newark Police Department testified that in September 2004 he was employed as a special police officer and assigned to the NHA. He responded to the incident in the Seth [Boyden] housing complex on September 30, 2004. Upon arriving at the manager's office, Cheeks observed Notis bleeding from the left side of his head. Cheeks said he saw "a lot of blood" and it was "streaming down." Cheeks spoke to Notis briefly before Notis was taken to the hospital. Notis told him that defendant "did it[.]"
Defendant did not testify nor did he call any witnesses on his own behalf. Defendant moved, however, for a judgment of acquittal on all counts. The trial court denied the motion. As stated previously, the jury found defendant guilty of all of the charges.
In this appeal, defendant raises the following issues for our consideration.
BECAUSE THE STATE FAILED TO PROVE THE CHARGE OF CONSPIRACY BEYOND A REASONABLE DOUBT, THE TRIAL [COURT] ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. (U.S. CONST., Amend. XIV; N.J. CONST. ART. I, PARS. 1, 9, 10)
THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, ¶10. (Not Raised Below.)
THE TRIAL [COURT'S] CHARGE ON ACCOMPLICE LIABILITY WAS INCORRECT IN THAT IT DID NOT EXPLAIN THE PRINCIPLES OF STATE v. BIELKEWICZ, [267 N.J. Super. 520 (App. Div. 1993)] PROPERLY AND WAS THEREFORE INSUFFICIENTLY TAILORED TO THE FACTS OF THE CASE, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We first consider defendant's contention that the judge erred by denying his motion for a judgment of acquittal. Defendant maintains that there was insufficient evidence to support his conviction for conspiring with "Face" to commit an aggravated assault upon Notis. We disagree.
As stated previously, before the matter was submitted to the jury, defendant moved for a judgment of acquittal on all counts. The court found that the State had presented sufficient evidence to allow the jury to consider all of the charges. The court stated the following with regard to the conspiracy charge:
We have according to [the] testimony, a confrontation of Face with the victim on September the 29th, 2004, the day before. Then the next day if you were to believe the testimony of the victim, . . . Face and the defendant come to the scene together with weapons. And the defendant makes a comment, and then immediately, if you're to believe the testimony of the ...