On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0308.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Skillman and Simonelli.
A jury found defendant guilty of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1); third-degree riot, in violation of N.J.S.A. 2C:33-1(a)(3); and various other lesser offenses. The trial court sentenced defendant to a six-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent four-year term for riot. The court merged defendant's other convictions into her conviction for aggravated assault.
The victim of the offenses was the fiancee of defendant's former boyfriend. The two women encountered each other on the streets of Elizabeth around 3 a.m. on November 21, 2004. Both women were in cars accompanied by other women.
After the victim drove by defendant's parked car, defendant began to follow her. About three minutes later, the victim parked her car at the side of the street, and defendant stopped her car next to the victim's car. At this point, the victim heard defendant say, "yeah that's her." Defendant and her companions got out of their car, and defendant and the victim exchanged words. Defendant told the victim that most, if not all, of the women in her car were carrying either a knife or razor. However, after a bystander called the police, defendant and her companions returned to their car and drove away.
The victim also got back in her car and began driving down the street, but she pulled over a few minutes later to pick up another passenger. Defendant again stopped her car near the victim's car, and she and her companions got out of the car.
The victim and some of her companions also got out of their car, and the two groups of women began to fight. During the fight, the victim felt someone grab her hair and cut her on the back. The victim turned to see defendant standing alone, looking her in the face. When the victim realized she was bleeding, she got back into the car. While she was sitting in the car, one of defendant's companions, co-defendant Sameerah DeWalt, slashed the victim's front tire and then slashed her face with a razor.
Defendant drove off after the incident accompanied by her companions. According to the testimony of co-defendant DeWalt, defendant told each of the women to make a false statement to the police that the victim had been the aggressor in the incident. At about 3:41 a.m. on November 21, defendant arrived at police headquarters in Elizabeth and filed a complaint.
At defendant's trial, the State presented testimony by the victim, one of the victim's companions, and co-defendant DeWalt, who pled guilty pursuant to a plea bargain under which she agreed to testify at defendant's trial, all of whom testified to defendant's role in the slashing of the victim. In addition, a witness called by a co-defendant also identified defendant as one of the participants, although she testified to a different version of the incident.
On appeal, defendant presents the following arguments:
POINT I: DURING CLOSING ARGUMENT, THE PROSECUTOR COMMITTED SEVERAL INSTANCES OF PROSECUTORIAL MISCONDUCT, THEREBY DENYING THE DEFENDANT THE ABILITY TO RECEIVE A FAIR TRIAL. (Partially Argued Below).
A. The prosecutor intentionally referred to facts not in evidence during his closing argument, and the court's curative instruction could not remedy the damage. (Argued Below).
B. The prosecutor incorrectly informed the jury of their critical role during his closing argument thereby lowering his burden of proof required for conviction and violating the Defendant's right to due process and a fair trial under the Sixth and Fourteenth Amendments of the United States Constitutions and Article I, Paragraphs 1, 9 and 10 of the New Jersey Constitution. (Not Argued Below).
C. During closing argument, the prosecutor committed plain error by intentionally misleading the jury regarding the availability of alternate defenses for the Defendant. (Not Argued Below).
D. The prosecutor committed prosecutorial misconduct by boldly expressing his personal beliefs of the invalidity of the Defendant's alibi defense, thereby requiring a ...