On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-12-1841.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Lyons and J. N. Harris.
Defendant Anton T. Kirk appeals from his conviction of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first- degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9; and second-degree conspiracy, N.J.S.A. 2C:5-2.
The following factual and procedural history is relevant to our consideration of the issues raised on appeal. On Sunday, Mother's Day, May 14, 2006, Jeffrey Cesario and Joseph Elsabee were traveling northbound aboard a New Jersey Transit train from Trenton. Two males, defendant and J.R., boarded the train at the Hamilton station and sat several rows in front of Cesario and Elsabee. Defendant was eighteen-years old and J.R. was sixteen-years old at this time.
Both defendant and J.R. began conversing on their cell phones and became increasingly "loud and rambunctious," to the point that they were bothering most of the people aboard the train. After approximately ten or fifteen minutes of this conduct, Cesario approached defendant and J.R. about "keep[ing] it down." Elsabee recalled that Cesario turned to defendant and J.R. and said something like, "hey, can you turn that down, you are pissing people off. Can you turn that shit down? That is pissing people off." According to Elsabee, defendant and J.R. responding by telling Cesario to "'F' off," calling him "the 'N' word," and "continu[ing] to do what they were doing" by speaking louder and increasing the volume on their cell phones.
When the train arrived at the New Brunswick station, at approximately noon, Cesario exited the train. Elsabee remained on board the train because his destination was Metuchen.
Cesario noticed that defendant and J.R. exited the train after him, so he tried to distance himself from them, by stopping and pretending to tie his shoes, to allow the pair to pass. Defendant and J.R. passed Cesario without incident and exited the train station. Cesario observed the pair walk away down the street. Eli Saade, a cab driver, was sitting in his car near the train station, when he observed defendant and J.R. run past his car and discard their bags in a garbage can and some bushes.
Thereafter, Cesario entered a store to buy flowers for his mother. While the clerk, Lauren Berberian, wrapped Cesario's bouquet, Cesario turned around because he thought he heard a noise behind him. Defendant then punched Cesario "square in the jaw," and immediately thereafter Cesario was punched in the jaw by J.R. Cesario testified that he was punched again by defendant and, that in all, he was punched about five times until he fell to the ground. Berberian testified that Cesario was punched more than twice in the face. Cesario was left dazed but not unconscious from the blows. Defendant stated that he struck Cesario only once, on the right side of his face, and that J.R. struck Cesario once, on the left side of his face.
Once Cesario fell to the ground, defendant and J.R. fled. Saade observed defendant and J.R. returning to retrieve their bags. Using the camera on his cell phone, Saade photographed defendant and J.R.
After the attack, Cesario was left bleeding. Emergency medical technicians and police arrived on the scene. Saade showed the photographs of defendant and J.R. to the police, and later, he sent the photographs to the police station. While Cesario was being transported by ambulance to Robert Wood Johnson Hospital, a police officer showed Cesario the photographs of defendant and J.R. from Saade's cell phone. After being examined at the hospital, Cesario learned his jaw was broken and surgery was necessary.
Dr. Michael Stern, who testified as an expert in maxillofacial surgery and facial trauma, treated Cesario at the hospital and determined that Cesario had multiple fractures in his jawbone and that pieces of the jawbone were separated. Additionally, the doctor noticed a segment of bone was floating in Cesario's jaw and several of Cesario's bottom teeth were loose.
Dr. Stern operated on Cesario in an attempt to reattach his jaw and reconstruct his jawbone. Cesario said that his jaw was wired shut for approximately two months after surgery and that he spit up blood for about a week or two afterwards. Cesario said the pain was "horrible."
Dr. Stern determined that Cesario's jaw could not be fully restored and placed back in its socket. This was because a muscle was no longer attached to the jawbone. Dr. Stern pointed out that, now, Cesario's jaw cannot properly open and that Cesario's jaw will permanently deviate to one side. Dr. Stern also noted that Cesario's teeth were permanently deformed and his jaw was permanently disfigured.
Dr. Stern opined that Cesario was probably hit multiple times in order to suffer such a serious fracture. He said that the injury was caused by blows exerted with "a great deal of force." Dr. Stern said the type of injury sustained by Cesario was commonly caused by gunshot wounds, high speed vehicular accidents, or assaults with an instrument.
Dr. Rick Wright, an expert in orthodontics, testified that as a result of the incident, Cesario now has a moderate open bite, a moderate overjet, some maxillary crowding, a crossbite, and an uncentered midline.
Dr. Douglas Ely, an expert in dentistry, opined that Cesario's ability to eat could be limited by the injury.
On May 24, 2006, Saade's photographs of defendant and J.R. were published in several local newspapers. James Rau, the clinical director of Bonnie Brae residential home for juveniles, saw the photographs and recognized defendant and J.R. because they were residents of Bonnie Brae. Rau notified the police, and defendant and J.R. were subsequently arrested.
Upon arriving at the New Brunswick Police Department, defendant waived his Miranda*fn1 rights and provided a statement; both the waiver and statement were recorded on tape. In his statement, defendant said Cesario asked him and J.R. to quiet down while aboard train. He then stated:
So we got off the train and first [Cesario] was walking in front of us. So I guess he might have felt threatened. So... he let us go in front of him and... I, I [was] like you was talking mess on the train let[']s get in it now[,]... he was like whatever, whatever....
[S]o he went to the left. I went to the right and I put my bag down and uh I told my boy I was about to hit him. He said okay. So I walked over there. He saw me coming.... I hit him.
Defendant said that he took his shirt off, after he left the flower shop while he walked down the street. He also stated that he saw the police arrive at the scene.
In Indictment No. 06-12-184, defendant was charged with second-degree aggravated assault (count one), first-degree use of a juvenile to commit a criminal offense (count two), and second-degree conspiracy (count three). J.R. was also charged with the crimes stated in counts one and three. The State successfully moved to transfer J.R.'s matter to the Law Division to try J.R. as an adult. Thereafter, J.R. entered into a plea agreement and pled guilty to count one. Defendant was tried by a jury.
In the State's opening statement, it declared, "[J.R.] also gave a statement. You will be hearing that." However, J.R. never testified nor was his statement read into evidence.
At the conclusion of the State's case, defendant moved for a judgment of acquittal. Defendant particularly sought dismissal of count two because "the juvenile in this matter was actually tried in adult court, and he was convicted in adult court. So, the State has not considered him to be a juvenile, and he was not treated as a juvenile in the case, after trying to convict [defendant] for the use of a juvenile." The trial court denied the motion. The Court determined that sufficient testimony supported the offenses charged.
At trial, defendant claimed that he did not intend to hurt Cesario when he punched him and that he never told J.R. to help him or hit Cesario.
Also, on direct examination, defense counsel asked defendant to "characterize [Lauren Berberian's] testimony, in terms of where the incident took place." Defendant responded, "[f]irst, she stated that, Jeff Cesario was pushed. Jeff was never pushed. She stated that we pushed Jeff. We did not push Jeff. In my statement and [J.R.'s], in the discovery, it has nothing, it has no evidence about that, about Jeff Cesario being pushed."
During the State's cross-examination of defendant, the following exchange took place:
Q: You also stated a minute ago, that you read all the discovery; correct?
Q: You said [J.R.'s] statement doesn't match what happened here; correct?
Q: It doesn't? Does his statement match?
Q: Does it match what Lauren Berberian was saying?
Q: First, I'm going to show you three documents. I'm going to show you your statement to the police that day. Okay. I will show you [J.R.'s] statement. And I'll show you [J.R.'s] statement from the previous hearing. I need you to refresh your recollection on [J.R.'s] statements; okay?
The State's line of questioning then turned towards whether defendant made a plan with [J.R.] to hit Cesario:
Q: The plan was for [J.R.] to hit him first and you second?
A: There was no plan.....
Q: You don't remember making a plan with [J.R.], where he was supposed to hit him first, and you second?
Q: Let me refresh your recollection. Page 22, the second paragraph. I want you read through that.
Q: Don't read it out loud.
Q: Just to refresh your recollection
THE COURT: Not out loud..... [Defense Counsel]: I object for the record. He's asking him to read the transcript of another prior ...