On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0475.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 23, 2009
Before Judges Cuff and Waugh.
A jury found defendant guilty of two counts of third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7) (Counts Three and Four). After merging Count Four with Count Three, Judge DePascale imposed a five-year term of imprisonment on Count Three. The appropriate fines, penalties and assessments were also imposed.
On November 19, 2004, Cowan Price received a call from his sister that defendant was on his way to the house Price shared with his sister and mother to "beat on [him]." Price suspected that his sister had informed defendant of a verbal argument between him and his sister that included some pushing and shoving. Defendant was the long-time boyfriend of Price's sister and the father of his sister's newborn child.
When Price received the call, he was at the barber shop. Price testified he had no desire to be at home when defendant arrived; nevertheless, he left the barber and returned to his home where he showered and changed his clothes. His sister reiterated that defendant was coming to get him and ten minutes later Price observed her drop keys from an apartment window to defendant to allow him to enter the building.
Defendant entered the apartment and accused Price of striking his child. Price denied he had struck the child and stated he would never do such a thing to a baby. As Price called his mother to report that defendant and another man*fn1 were in the apartment, the other man struck him in the eye. As Price turned, defendant struck him in the face. Price fell to the ground, and defendant and the other man stomped and kicked him about the face and head. Price estimated that the beating lasted about five minutes. He did not punch, kick or strike defendant or the other man.
After the beating, defendant and the other man walked away. Price's grandmother called the police. The first officer who arrived at the scene found Price with his face covered in blood and his left eye swollen. He was taken by ambulance to the emergency room. A laceration to his cheek was repaired with wound glue; a bite mark on his hand required a tetanus shot. A CAT scan revealed a nasal bone fracture and an orbital fracture. An ophthalmologist and oral maxillofacial surgeon determined the fractures might heal without surgery and Price was released. At that time, Price testified that fluid leaked from his eye and his vision was blurred. He also testified that he occasionally continues to suffer blurred vision.
On appeal, defendant raises the following arguments:
THE COURT ERRED IN FAILING TO INCLUDE A CHARGE FOR THE DISORDERLY PERSONS OFFENSE OF SIMPLE ASSAULT AND PETTY DISORDERLY PERSONS OFFENSE OF A FIGHT BY MUTUAL CONSENT.
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THIRD DEGREE AGGRAVATED ASSAULT AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS ...