On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-05-0196.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fisher.
On the evening of December 31, 2005, at a New Year's Eve party at a private residence in Lopatcong, defendant began acting belligerently toward other guests, including Jason Bergmann. After midnight, defendant began yelling at Bergmann, leading to a push by Bergmann and a punch by defendant. Eventually, Bergmann, Stefan Tarnawsky and Justin Rusin*fn1 left the party, but soon realized they were followed by defendant and three others. After chasing and having a brief physical exchange with Tarnawsky, defendant returned to where Bergmann was surrounded by others. Defendant punched Bergmann in the nose, Bergmann swung back, and the two fell to the ground. Someone kicked Bergmann, and then defendant and others punched, kicked and stomped on Bergmann, who called for help and attempted to protect himself by holding his arms over his head. Tarnawsky explained in his testimony how defendant stomped on Bergmann not "play[fully]" but "to break bones." This melee continued until someone was able to pull defendant away.
Bergmann was helped off the concrete driveway by his friends. Tarnawsky observed that Bergmann "had a swollen eye and he was bleeding . . . from his mouth[,] one tooth was almost knocked out[, and] [h]is whole face was swollen." Bergmann, Tarnawsky and Rusin walked away from the area but did not get far before being stopped by a police officer, who called for an ambulance to take Bergmann to the hospital.
Bergmann later gave police a written statement and identified defendant from a photographic array. Defendant was arrested and charged with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). At the conclusion of a trial, defendant was found guilty of the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and sentenced to a four-year prison term.
Defendant appealed, raising the following arguments:
I. THE ADMISSION OF EVIDENCE OF DEFENDANT'S INVOCATION OF HIS RIGHT TO REMAIN SILENT DENIED DEFENDANT A FAIR TRIAL (Not Raised Below).
II. THE TRIAL COURT IMPROPERLY LIMITED THE DEFENSE EXAMINATION OF HARVEY GERARD.
III. DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE SECOND DEGREE ASSAULT CHARGE WAS WRONGFULLY DENIED.
IV. THE JURY CHARGE WAS INCORRECT AND MISLEADING (Not Raised Below).
V. DEFENDANT WAS PREJUDICED BY THE PROS-ECUTOR'S IMPROPER COMMENTS (Not Raised Below).
VI. DEFENDANT'S SENTENCE RESULTED FROM AN IMPROPER EVALUATION OF THE ...