On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-04-1265.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
A jury found defendant Jose Carranza guilty of third degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1b(7) (Count One); two counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Counts Two and Five); one count of fourth degree unlawful possession of a weapon (a bottle), N.J.S.A. 2C:39-5d (Count Three); and one count of third degree possession of a weapon (a bottle) for unlawful purposes, N.J.S.A. 2C:39-4d (Count Four). At sentencing, the judge merged Count One with Count Two and Count Three with Count Four. Defendant was sentenced to consecutive four-year terms of imprisonment with eighteen-month periods of parole ineligibility on Counts Two and Five, and a three-year term of imprisonment on Count Four, concurrent to the sentence imposed on Count Two. The appropriate fees, fines and penalties were also imposed.
The charges arise from a barroom brawl. On October 1, 2006, defendant Carranza went to Huguito's Restaurant & Bar (Huguito's) in West Orange with three or four friends. At some point in the evening, a disagreement erupted between one of defendant's friends, Persy Leyva, and four men drinking at the bar: Rafael Ramirez, Roberto Flores, Jesus Flores, and George Villegas.*fn1 Soon chairs and bottles flew about the room.
Ramirez was hit on the rear right side of his head by a bottle and was soon attacked by defendant and two other men. Ramirez fell to the floor. He attempted to defend himself by pushing his assailants; nevertheless, he was struck in the ribs and sustained injuries to the front left side of his temple and rear left side of his head. During the melee, he observed defendant throwing bottles and chairs at his friends, who had sought cover in a corner of the room.
Despite his efforts to evade the flying bottles and chairs, Jesus Flores was struck in the face with a bottle. He described the person who threw the bottle as a "skinny" bare-chested man. This man was not defendant. Flores did, however, see defendant involved in the fracas.
Allen Torres, the owner of Huguito's, was behind the bar that evening. Torres overheard Leyva "having a little disagreement" with Ramirez. Ten or fifteen minutes later, Torres observed Leyva get up from his chair. As Leyva did so, Ramirez chased him to a corner of the bar. Torres then saw defendant and another man "c[o]me from behind and br[ea]k the bottle over [Ramirez's] head." Defendant then struck Ramirez when he was on the ground. Torres also observed defendant and his cohorts throwing bottles and chairs towards other people. He also heard defendant yell obscenities, such as "f---ing Costa Ricans," at the people who sought refuge in the corner. When Torres announced the police were on their way, defendant and his friends quickly disbursed.
West Orange police officers Keith Reilly and William Sayers responded to the scene. Torres provided a description of those involved in the brawl. He described them as Hispanic males, one of whom was bare-chested. He also informed the officers that one of the men ran north on Ashland Avenue.
Officer Reilly spotted defendant walking about a block from the bar. His attention was drawn to this man because he was wearing a white tee shirt and his arm was covered with blood. After initially resisting detention, defendant was transported to the bar where he was identified separately by Ramirez and Jesus Flores as one of the men involved in the fight. Following the identifications, defendant was arrested. Ramirez was transported to the hospital for treatment.
On appeal, defendant raises the following arguments:
THERE WAS INSUFFICIENT EVIDENCE PRESENTED FOR THE JURY TO FIND THE DEFENDANT GUILTY
THE TRIAL JUDGE INCORRECTLY SENTENCED THE ...