On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1322.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Lyons.
Defendant, Paul Rodgers, appeals his conviction, after trial by jury, on the first and third counts of a three-count indictment that charged him with: third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5)(a) (count one); second-degree disarming of a law enforcement officer, contrary to N.J.S.A. 2C:12-11(a) (count two); and second-degree attempted escape, contrary to N.J.S.A. 2C:29-5(a) (count three). Defendant was acquitted of the second-degree disarming of a law enforcement officer count. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On June 5, 2007, defendant arrived at the Hudson County Administration building in Jersey City. He was in the custody of the Hudson County Sheriff's Office for a court appearance on an unrelated criminal charge. Once he entered the administration building, he was placed in a receiving area. A sheriff's officer testified at trial that he placed defendant in restraints on that day.
At some point, defendant was escorted by the sheriff's officer from the receiving area to a cell and then the courthouse floor where Officer Michael Diaferia was waiting to bring him to a particular courtroom on that floor. According to the testimony of Officer Diaferia, when defendant arrived on the ninth floor and exited the elevator, he began shouting and cursing. The officer noticed defendant's hands and that the left handcuff appeared to be defaced. Officer Diaferia grabbed a replacement pair of handcuffs and approached defendant. The officer testified that as he did so, the handcuff fell apart and hit the ground. The officer further stated that at that point, defendant grabbed his weapon. Officer Diaferia engaged in a struggle with defendant, during which time the officer and defendant fell to the ground. According to the officer, others arrived, defendant was secured, and both Officer Diaferia and defendant suffered physical injuries which required medical treatment.
Defendant's testimony at trial differed distinctly from Officer Diaferia's. Defendant stated that when he arrived on the floor, several officers were there. While the officers were discussing what to do with defendant, defendant sat down in an area referred to as the "bullpen." Defendant testified that he was then confronted by Officer Diaferia. Defendant testified that matters escalated and he was "roughed up" by Diaferia. A physical scuffle ensued and, according to defendant, the officer hit his head on the corner of the furniture but then stood up and injured defendant's foot.
As a result of this incident, defendant was indicted and charged with third-degree aggravated assault, second-degree disarming of a law enforcement officer, and second-degree attempted escape.
His trial was held before a judge and a jury on January 30, January 31, and February 1, 2008. At the conclusion of the presentation of evidence, the trial judge asked if either counsel had any requests to charge the jury. There were none. The trial judge then proceeded to charge the jury. First of all, he presented the jury with the elements necessary to constitute escape under the law, utilizing the Model Jury Charge, revised June 5, 2006. The judge pointed out that the charge the jury would be presented with was attempted escape, but he noted to the jury that they needed to focus on escape first and then they would "get to attempt."
The trial judge noted that, consistent with N.J.S.A. 2C:29-5(a), the statute that proscribes escape, the State had to prove beyond a reasonable doubt that defendant knowingly removed himself from official detention. The judge then went on to explain what official detention was. After outlining the elements for escape, the judge then turned to the elements of attempt.
The judge utilized the Model Jury Charge for attempt, which was revised March 17, 1997. He used, in particular, "Alternative I," the introduction to the "Main Charge," sub-paragraph "(3) Attempt-Substantial Step," and the closing paragraph of the Model Charge for attempt. The Model Charge given pointed out that attempt requires that the defendant "purposely" did or omitted to do something and that action or omission must constitute a substantial step in the course of conduct planned to culminate in the commission of the crime. The trial judge went on to explain that a substantial step has to be taken by the defendant "purposely" with a "conscious object to engage in conduct that would cause," in this case, escape. The judge then gave a definition of "purposely," as well.
After the jury retired for deliberations, they presented the court with a question. They asked, "what's the definition of attempted escape?" In response, the trial judge reviewed, once again, the elements for escape and the elements for attempt. He particularly pointed out that attempt required purposeful conduct.
In addition to reviewing the Model Jury Charges, the judge provided the jury with some hypothetical examples. In those examples, he again stressed to the jury that they have to look to determine what defendant's purpose was in either taking action or omitting to take action. In particular, he made reference to "the purpose to escape." There were no further questions from the jury. Defendant was acquitted of disarming or attempting to disarm a ...