On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-00568.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2008
Before Judges Winkelstein and Fuentes.
Defendant James White was tried before a jury and convicted of third-degree aggravated assault, causing the victim significant bodily injury, N.J.S.A. 2C:12-1b(7), as a lesser included offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The court sentenced defendant to a term of five years, with two and a half years of parole ineligibility. We affirm the conviction and remand for re-sentencing. These are the salient facts.
On October 12th, 2004, at approximately one o'clock in the morning, forty-eight-year-old Robert Jenkins was watching television in his room at the Howard Johnson Motel in New Brunswick, when he heard someone knocking at the door. He responded to encounter his neighbor who asked to borrow a can-opener. Jenkins gave the neighbor the can-opener with the expectation that he would return it within minutes. After waiting for more than ten minutes, Jenkins decided to walk over to his neighbor's nearby room to get back his can-opener.
Jenkins occupied room 138; he described the motel as a two-story structure consisting of a lower level and an upper level. As soon as he stepped outside his room, Jenkins immediately came upon "a young man banging on the door next door to my door." Because his neighbor's room was two doors away, he walked around the man knocking to get to his neighbor's door. After knocking several times without a response, he decided to return to his room.
As Jenkins walked back to his room, the young man pointed at a nearby truck and said: "I have some girls. . . And I have some alcohol. Let's party in your room." Jenkins declined the invitation and continued on his way. As he reached the door of his room, the young man jumped on his back, pulled up Jenkins's shirt, and stabbed him "as hard as he could."
The two men then began to struggle. According to Jenkins, he managed to get his assailant in front of him, while at the same time saying: "why are you doing this?" But the man "never said a word." As they struggle, the two men rolled down a few steps, eventually stopping at the landing. Jenkins gave the following description of what transpired next:
When we get to the landing, I try to get underneath the nearest car that was there.
And by that time his friend came, and his friend started stomping me. And at that time said I said to them, you know, to please don't hurt me or please don't kill me or whatever it was, you know. . . I was actually pleading for my life . . . I said why are you doing this? And they still didn't say anything. (Emphasis added.)
According to Jenkins, the beating continued for about three minutes. At this point, the attack stopped, and the two men walked toward the nearby truck "laughing;" they got in the vehicle and drove away. Jenkins specifically testified that the "second man" took an active part in "stomping me as hard as he could, kicking me." Jenkins described the second assailant as an African American man, approximately five feet nine inches tall, "much taller than me."
After the attack, Jenkins crawled back to his room and called the motel manager for help. Inexplicably, the manager apparently failed to appreciate the seriousness of the situation, and did not react to Jenkins's pleas for assistance. He eventually dragged himself to his neighbor's room, who immediately called 911. He was taken to Robert Wood Johnson and admitted to the intensive care unit (ICU), where he remained for the next seventeen days. He was diagnosed as suffering from a perforated diaphragm and liver, and had lost a great deal of blood. He was intubated to permit him to breath, and a catheter was inserted to permit him to urinate. The attending physician testified that Jenkins sustained life-threatening injuries that would have led to his death if left untreated.
Christian Sheridan, the occupant of the motel room next to Jenkins's room, gave a description of the truck to the responding police officers. A short time thereafter, officers from the Highland Park Police Department stopped a truck matching Sheridan's description. Inside the vehicle were defendant and a man subsequently identified as Ioannis Tsampis, the individual who initially ...