On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-01-0052.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
In this appeal, we address whether the trial judge erroneously limited defendant's cross-examination of a State's witness.
Defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree terroristic threats, N.J.S.A. 2C:12-3a; he was acquitted of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The judge sentenced defendant to an eighteen-year extended term, subject to an 85% period of parole ineligibility, on the aggravated assault conviction, as well as a concurrent five-year term, with a two-and-one-half-year period of parole ineligibility, on the terroristic threat conviction.
Defendant appealed, presenting the following arguments for our consideration:
I. THE JUDGE VIOLATED MR. CHESTNUT'S RIGHTS TO CONFRONT WITNESSES, A FAIR TRIAL, AND DUE PROCESS, BY IMPROPERLY RESTRICTING CROSS-EXAMINATION OF MS. BENJAMIN. U.S. CONST. AMENDS V, VI, XIV; N.J. CONST. ART. 1, ¶¶ 1, 9, 10.
II. THE JURY INSTRUCTIONS ON [THE TERRORISTIC THREAT CHARGE] WERE INADEQUATE AND DEPRIVED MR. CHESTNUT OF A FAIR TRIAL.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Point I.
Testimony heard by the jury revealed that, on July 3, 2005, in Paterson, defendant attempted to cause serious bodily injury to Laneise Benjamin. A police officer testified that, when he came upon the scene, defendant was "on top of [Ms. Benjamin], basically straddling her and punching her about the face, the head . . . [w]ith closed fists."
Ms. Benjamin acknowledged in her testimony that she was a prostitute and drug user. In Point I, defendant argues that his defense was improperly restricted because the judge would not permit his counsel to cross-examine Ms. Benjamin regarding her inconsistent statements in entering a guilty plea and in writing to the judge in an attempt to retract that guilty plea in an unrelated drug prosecution. Counsel argued that these inconsistent statements were probative on Ms. Benjamin's credibility. Although we agree that the content of this proposed cross-examination was relevant, we reject the argument that the judge abused his discretion in precluding it. The judge had legitimate concerns that cross-examination into this area would give rise to time-consuming issues related to Ms. Benjamin's involvement in the criminal justice system, which would have little probative value and might tend to distract the jury from the questions to be decided.
A judge's rulings on the scope of cross-examination should not be disturbed absent an abuse of discretion. State v. Harvey, 151 N.J. 117, 188 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000). Although we might have ruled differently, we find no "clear error and prejudice" resulting from the judge's discretionary decision and, therefore, reject defendant's claim to a new trial. State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990).
Our conclusion that the judge did not abuse his discretion when he barred defendant's attempt to cross-examine Ms. Benjamin concerning her letter in the unrelated drug case is strengthened by the testimony the jury did hear, which provided the jury with ample opportunity to consider and question her credibility. In particular, the jury heard testimony that Ms. Benjamin was currently serving a three-year prison term for distribution of controlled dangerous substances within 1000 feet of school property, had a prior drug possession conviction, and had been using heroin and cocaine for thirteen years. The judge instructed the jurors that they were entitled to consider her prior criminal record when ...