On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 03-04-0133-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Tyrone Henry appeals from a November 29, 2006, order denying his application to vacate his conviction and permit him to be retried by a jury. We now reverse.
Defendant was tried before the bench on December 13, 2004, and was convicted on Count I of Indictment No. 03-04-0133-I charging him with third-degree aggravated assault contrary to N.J.S.A. 2C:12-1b(7). He was sentenced to a five-year term on January 28, 2005, with credit for twenty-five days time served,*fn1 at which time Counts II through IV of Indictment No. 03-04-0133-I were formally dismissed pursuant to a pretrial suppression motion the judge had granted.*fn2
Defendant appealed his conviction and sentence, raising the following issues on appeal:
POINT I -- THE DEFENDANT DID NOT EFFECTIVELY WAIVE HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL. (NOT RAISED BELOW)
POINT II -- THE TRIAL COURT ERRED IN GRANTING THE STATE'S REQUEST TO EXTEND THE INTERSTATE AGREEMENT ON DETAINERS.
POINT III -- THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
POINT IV -- ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE [WAS] MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.
We addressed only the first two points on appeal. State v. Henry, No. A-3427-04 (App. Div. May 15, 2006) (slip op. at 6). We found no merit to Point II. Id. at 10. However, we remanded the jury-trial issue to the judge for a plenary hearing to determine whether defendant's waiver of his constitutional right to a jury trial met the criteria of State v. Dunne, 124 N.J. 303, 317 (1991). Id. at 17-19. We permitted defendant to "seek review of that determination and also renew his sentencing arguments in a new appeal." Id. at 19. However, in this appeal from the remand proceedings, he has not renewed his sentencing arguments, confining the issues on appeal to the following:
POINT I -- THE TRIAL COURT ERRED IN CONCLUDING THE DEFENDANT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVED HIS RIGHT TO A JURY TRIAL.
B. THE TESTIMONY ELICITED AT THE REMAND HEARING DEMONSTRATED THE DEFENDANT DID NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS RIGHT TO A JURY TRIAL, AND THE TRIAL COURT ERRED BY CONCLUDING OTHERWISE.
As a consequence, we limit our discussion of the facts to those necessary to an understanding of the jury-trial issue. Defendant and Heather Hanson had a dating relationship and on December 20, 2002, they had dinner together. They began to argue after dinner because Hanson did not want defendant to drive her car since he had been drinking. He left, but then made repeated calls to her cell and house phones, which she never answered.
Defendant returned to Hanson's apartment in the early morning hours of December 21 and they again argued, this time over her failure to answer his telephone calls. He grabbed her cell phone, they struggled for possession of it, and it broke. Hanson left her bedroom, where they had been arguing and asked Jameel Stevens, a mutual friend who was also at her apartment, if he could fix it, but he said he could not. She returned to her bedroom where defendant was waiting.
At this point, a physical altercation occurred. Hanson's and defendant's accounts of the altercation varied substantially, with Hanson accusing defendant of being the aggressor and defendant claiming that Hanson punched him in the face when she returned to the bedroom. Hanson denied ever hitting him. Defendant admitted that he swung his arm and hit her face, causing her to fall to the floor, but testified that this occurred while he was fending off blows from her. She briefly lost consciousness and awoke on the bathroom floor with blood on her face. Neighbors called the police on a noise complaint and, when the police entered the apartment with the superintendant's assistance, they arrested defendant. The local rescue squad took Hanson to the hospital, where she was diagnosed with a broken nose and contusions around her eye. There were no other documented injuries to Hanson or defendant.
On the day set for trial of the aggravated-assault charge, defendant's counsel stated defendant wanted to waive his right to a trial by jury and proceed with a bench trial. The judge conducted a limited voir dire of defendant as follows:
THE COURT: Mr. Henry, is that ...