On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-02-0316.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Oscar L. Reyes was tried and convicted before a jury of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon (box-cutter) for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon other than a firearm, N.J.S.A. 2C:39-5d; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). After finding aggravating factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating factors, the court sentenced defendant to an aggregate term of four years.*fn1
These are the salient facts from the evidence presented at trial. Joseph Giresi was the first witness called by the State. He gave the following account of what occurred on the evening of October 7, 2003. Giresi left the funeral home located on Harrison Avenue in Garfield on his motorcycle. As he approached Frederick Street, Giresi saw a man, later identified as defendant, stopped in the middle of the street blocking the road. The area had enough lighting to permit Giresi to see defendant's clothing and face.
Giresi stopped his motorcycle about four feet away from defendant and asked him what was he doing. Without saying a word, defendant turned around, looked directly at Giresi, walked around the motorcycle, and stopped about two feet away from Giresi. For no apparent reason, defendant reached into his pocket and pulled out a yellow-handle box-cutter, and swung it across Giresi's torso, causing him to take evasive action to avoid being cut by the knife.
Giresi left the scene and rode back to the funeral home determined to report the incident to the police. He eventually reported the incident to Garfield Police Officer Edward Figueroa. Because the crime had occurred just minutes before, Figueroa suggested that Giresi drive around the area in Figueroa's police car to see if he could find his assailant.
After driving just a short distance, Giresi and Figueroa came upon defendant walking from Frederick Street onto Gaston Street, just a few blocks from where the incident had taken place. Giresi identified Reyes as the person who had assaulted him and confirmed that he was wearing the same clothes Giresi had previously described to Figueroa.
Figueroa, who was wearing his police uniform, stopped his patrol cruiser and got out of the car. Figueroa approached defendant and ordered him to stop walking; Reyes disregarded Figueroa's verbal command and continued walking. Figueroa repeated the order to stop walking, orally announcing himself as a police officer. Reyes again continued to walk, making no effort to acknowledge Figueroa's presence.
Figueroa finally reached Reyes and grabbed him by the arm. According to Figueroa, Reyes turned around, looked slightly in Figueroa's direction, and placed his hands in his waist area. He then slightly pushed Figueroa, simultaneously exposing the box-cutter. Fearing for his safety, Figueroa sprayed what he described as a "one second burst" of mace at Reyes. This caused Reyes to run away; Figueroa chased him, eventually catching and apprehending him. Figueroa recovered a yellow-handle box-cutter from Reyes's person.
The matter came for trial on February 15, 2006, more than two years after defendant's arrest in October 2003. Before the trial began, defense counsel requested an adjournment to better prepare defendant's case. According to defense counsel, the bulk of her preparation had gone to another criminal case also pending against defendant. The trial court denied the adjournment, noting that defense counsel had been granted an adjournment in this case a month earlier.
Acting on the State's application, the trial court conducted an N.J.R.E. 104 hearing outside the presence of the jury to determine the admissibility of defendant's criminal history in the event he decided to testify in his own defense. The Assistant Prosecutor indicated that pursuant to N.J.R.E. 609, she intended to challenge defendant's credibility by bringing to the jury's attention, through cross-examination, that defendant had been convicted in December 1994 of second-degree aggravated assault, and third-degree unlawful possession of a weapon, and sentenced to a term of seven years, with a three-year period of parole ineligibility.
Defendant objected, arguing that these convictions occurred when defendant was between seventeen and eighteen years old, and were thus too remote to be admitted against defendant who was thirty-one years old at the time of this trial. Applying the standards articulated by the Supreme Court in State v. Brunson, 132 N.J. 377, 390-93 (1993), and State v. Sands, 76 N.J. 127 (1978), and mindful of the need to include the sentence imposed for a given offense, State v. Hicks, 283 N.J. Super. 301, 309 (App. Div. 1995), certif. denied, 143 N.J. 327 ...