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State v. Hay


March 23, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-755-I.

Per curiam.


Submitted: December 16, 2009

Before Judges Cuff and C.L. Miniman.

Defendant Andre T. Hay appeals from a judgment of conviction for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3a (count two); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (count four); and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count five).*fn1 Defendant was sentenced to a term of seven years on count one, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, with three years of parole supervision upon release. He was sentenced to five concurrent years subject to a fifty percent parole disqualifier pursuant to N.J.S.A. 2C:43-6b on count two; eighteen concurrent months on count four; and count five was merged into count one for sentencing purposes. All sentences were to run consecutively to any sentence imposed under Morris County Indictment No. 06-07-935. This appeal followed. We affirm.


The victim had two children fathered by defendant; defendant and the victim were never married and maintained separate residences in East Orange. They had known each other since high school and saw each other frequently. On February 8, 2003, defendant was watching his children at the victim's home while she was out with her mother. They returned late in the afternoon, and the mother remained at the house for about an hour.

After the mother left, defendant and the victim began arguing about a relationship she had with another man while defendant was in prison. The argument escalated into violence after defendant called the victim into the dining room. Defendant chased the victim around the dining room table, punched her in the face, and began choking her. The argument continued as he slammed her to the floor, dragged her, and threatened to kill her and kick her out a bay window on the porch.

Defendant became angrier when she refused to answer his questions, so he placed the victim in a chair and looked for tape to hold her there. When he could not find tape, he took a three-and-one-half-foot metal pole from a nearby closet and struck her repeatedly. He insisted that she keep her arms down, but she kept them up and managed to block the blows. He stopped only when he cut his finger on a screw jutting out from the pole.

The doorbell rang soon thereafter, and defendant let the victim's brother into the house. Although her arm had begun to swell, she did not think her brother noticed the injury, and she did not tell him about it because defendant was still there. Her brother left after about twenty minutes.

Defendant, who by then was calm, told the victim to call her mother and tell her that she had slipped on the icy front steps while taking out the garbage. He told the victim to repeat the same story when her grandmother called. Although the victim's arm was badly swollen down to her fingertips, defendant insisted it was not broken and would not let her go to the hospital. He followed her around the house to keep an eye on her to ensure that she did not leave.

Defendant spent the night at the victim's house but left early the next morning. When the mother arrived to take the victim's older son to church, the victim met her outside with both of the children. The victim got into the mother's car and told her the truth about the injury. The mother drove the victim and her younger son to a friend's house for safekeeping. Later that day, when the pain did not subside, the mother drove the victim to Union County Community Hospital.

As the victim was explaining how her injury occurred, the triage nurse asked whether she wanted to report the incident to the police. She said yes and the police were contacted on her behalf. Meanwhile, Dr. Randall Lewis examined her x-rays and diagnosed a mid-ulnar fracture. He applied a splint, gave the victim pain medication, and instructed her to follow up with an orthopedist to have a cast put on within one or two days when the swelling went down. He documented bruises and scratches on her chest and scratches to her face in the medical records.

A police officer arrived at the hospital at approximately 10:00 p.m. to conduct a preliminary investigation. He filed an initial incident report based on his interview with the victim. The next day she had a cast put on her arm at the University of Medicine and Dentistry of New Jersey, and she left the following day for a week-long visit with her grandmother in South Carolina. The victim gave a statement to Officer Dwayne Harris of the East Orange Police Department on February 20, 2003, after she returned. The victim again related that defendant had assaulted her but refused to seek a temporary restraining order.

Harris obtained a warrant for defendant's arrest but could not locate him. Harris closed his investigation in May 2003 pending defendant's arrest. That summer, the victim, who had been living with her mother since the incident, moved to South Carolina with her children for about eighteen months. Defendant was arrested while she was away. The victim was kept abreast of court dates, though the prosecutor's office assured her that her attendance was unnecessary. She moved back to live with her mother, who had since moved to East Orange, in November 2004.

Defendant began visiting the victim and their children by the spring of 2005, and they briefly reconciled. At his insistence, she went to the prosecutor's office on November 14, 2005, to attempt to get the charges dropped. She did not recant her explanation of the injury, but indicated that she did not want to proceed with the prosecution, "[b]ecause it's been so long and I don't want to be bothered any more." Within a few months, her relationship with defendant dissolved.


The prosecution was not dropped; the matter was tried on March 14 and 15, 2007; and the jury returned its verdict on March 15. At the trial, Dr. Lewis testified to the victim's injuries. He recalled that the victim told him during treatment that she had been assaulted. When asked whether she mentioned the cause of her injury, he replied that "she said she was struck by a pipe, and she put her arm up to block the blow." Defendant did not object when this testimony was given. Although Dr. Lewis was never qualified as an expert witness, he characterized the victim's injury as a "night stick [sic] fracture," a term used "in most of the emergency medicine textbooks you read." He explained the origin of the term:

[T]here are certain histories that tie directly into certain injuries. And one of them is something called a night stick [sic] fracture. Back in the day when a lot of police officers would use a night stick [sic] to basically subdue people, they would come into the emergency department with night stick [sic] fractures. It's a defense fracture, which means you put your arm up like this to block a blow, and whatever is striking you hits you in the ulna, right in the middle of the ulna and fractures it.

Hence the term "night stick [sic] fracture".

He used the term to describe the victim's injury in his notes simply because "that's just the best way to describe it." Later, when asked whether the victim's explanation of the cause of her injury was consistent with his own observations, he responded that it was "very consistent."

Defendant raises the following issues for our consideration:







Defendant's failure to raise issues before the trial judge affects our scope of review. Rule 2:10-2 provides:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

"Plain error" must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. R.B., 183 N.J. 308, 330 (2005) (citations and quotation omitted); see also State v. Velasquez, 391 N.J. Super. 291, 311 (App. Div. 2007); State v. Lewis, 389 N.J. Super. 409, 419 (App. Div.), certif. denied, 190 N.J. 393 (2007). We apply this scope of review to the first four issues raised on appeal.


Defendant challenges two aspects of Dr. Lewis's testimony. First, he contends Dr. Lewis's testimony was inadmissible hearsay and the judge plainly erred in failing to sua sponte strike that testimony. Second, he urges that Dr. Lewis's testimony about the cause of the jury exceeded the bounds of lay testimony and the judge also plainly erred in failing to sua sponte strike his opinion on causation.

Where a defendant makes no objection to evidence, as here, challenged testimony is reviewed for plain error. State v. Taffaro, 195 N.J. 442, 454 (2008). We may infer from a defense attorney's failure to timely object that counsel did not then perceive the testimony as prejudicial. State v. Irving, 114 N.J. 427, 444 (1989). Moreover, such a failure deprives the trial judge of an opportunity to take curative action. Ibid.

Hearsay is inadmissible except as otherwise specified by the New Jersey Rules of Evidence. N.J.R.E. 802. Statements made "for purposes of medical diagnosis or treatment" are admissible if they were "made in good faith" and "are reasonably pertinent to diagnosis or treatment." N.J.R.E. 803(c)(4). However, where the statement identifies the cause of the injury, it is only admissible when the cause of an injury is relevant to treatment, and in such case, the physician must testify respecting its relevance to render the statement admissible. Palmisano v. Pear, 306 N.J. Super. 395, 401-02 (App. Div. 1997); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Here, Dr. Lewis did not establish this necessary foundation. However, because defendant did not object, we infer that his counsel did not regard the statement as prejudicial.

In any event, there is no indication in the record that the statement was made in anything other than good faith. Indeed, the victim went to the hospital for treatment before the police were contacted on her behalf and, thus, it is less likely that the statement was made for purposes of litigation. Additionally, we are satisfied that the statement was admissible as a prior consistent statement of a witness testifying at trial. Such statements escape the general prohibition against hearsay if "consistent with the witness' testimony and . . . offered to rebut an express or implied charge against the witness of recent fabrication . . . ." N.J.R.E. 803(a)(2).

Here, defense counsel in her opening remarks suggested that the victim did not seek medical assistance or speak with the police until a considerable time after the incident and that she later approached the prosecutor to have the charges dropped before ultimately deciding to prosecute the case. The victim then testified consistently with her statements to Dr. Lewis about the cause of her injury. Dr. Lewis's testimony established that the victim made a prior consistent statement on the day of the assault. No prejudice arose simply from the fact that Dr. Lewis testified to this consistent statement before defense counsel raised the issue of recent fabrication when he thereafter cross-examined the victim. Cf. State v. Balles, 47 N.J. 331, 340 (1966) (addressing fresh-complaint rule and determining that order of witnesses not prejudicial to defense), cert. denied, 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed. 2d 1321 (1967). We do not find that the judge plainly erred in failing to sua sponte strike this testimony.

We next consider defendant's concern regarding Dr. Lewis's opinion that the victim's account of the assault was consistent with the injury. Defendant contends that this testimony was not admissible as lay opinion because it was based on Dr. Lewis's special training and experience. He argues that, given this testimony's potential to provide "professional corroboration" of the victim's credibility, its admission was plainly erroneous.

We do not consider this issue "sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached," R.B., supra, 183 N.J. at 330, the standard for establishing plain error. A physician may, as a lay witness, testify to the cause of a patient's injury to the extent that it relates to the physician's diagnosis and treatment of that patient. Stigliano by Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 313 (1995). Of course, that was not established here, but we consider any error in this respect harmless because enough evidence was introduced at trial to qualify Dr. Lewis as an expert. State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995).

Additionally, the challenged testimony, while delivered based on Dr. Lewis's experience in emergency medicine, was not so esoteric as to require his qualification as an expert. It is within the ken of the ordinary juror that a broken forearm may result from a sharp blow with a metal object. Thus, although the doctor's use of the term "night stick fracture" was borrowed from emergency medical literature, that term did not render expert what was essentially lay testimony. In any event, any error in admission would have been harmless, because on cross-examination Dr. Lewis admitted that the victim's injury could also have resulted from a fall, as the defense contended.


Defendant contends that the judge's failure to articulate his reasons for ordering that the sentences imposed on the convictions run consecutively to the Morris County sentence under Indictment No. 06-07-935 requires a remand for resentencing. The State concedes that the judge should have set forth his reasons on the record, but asserts that those reasons were "abundantly apparent." If they should have been explicitly stated, the State urges us to exercise our original jurisdiction to determine the matter.

Defendant had been sentenced under the Morris County indictment to a term of three years for a separate aggravated assault on another woman at the Embassy Suites Hotel in Parsippany. The judge recited this fact but made no findings with respect to that offense. He then concluded without elaboration that the sentences imposed in this indictment should run consecutively to the Morris County sentence. Defendant later asked whether "there's [any] way possible it can run concurrent with what I have," and the court responded, "No."

Sentencing decisions are committed to the judge's sound discretion. State v. Jabbour, 118 N.J. 1, 5-6 (1990). The discretionary decision to impose sentences consecutively or concurrently must be guided by the principle that "'there can be no free crimes in a system for which the punishment shall fit the crime.'" State v. Carey, 168 N.J. 413, 422 (2001) (quoting State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986)). To that end, a trial court should consider whether:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous. [Id. at 422-23 (quoting Yarbough, supra, 100 N.J. at 644) (quotation marks omitted).]

Previously, the Supreme Court required us to remand a consecutive sentence if the judge failed to adequately explain his or her reasons for imposing consecutive, rather than concurrent, sentences. State v. Abdullah, 184 N.J. 497, 514-15 (2005). However, in State v. Bieniek, 200 N.J. 601, 606 (2010), the Court reviewed the facts that the judge considered at the time of sentencing. It then inferred from those facts which aggravating factors the judge found and which mitigating factors the judge considered but rejected. Id. at 609-10. The Court then reversed our remand for a statement of reasons for the sentence imposed and affirmed that sentence. Id. at 612. We follow that analysis here.

The evidence before the sentencing judge clearly established that the crime in Morris County and its objective were independent of the crimes in Essex County. Carey, supra, 168 N.J. at 422. Two separate acts of violence were committed at different times, one in July 2006 and the other on February 8, 2003; in different places, one in Parsippany and the other in East Orange; and against different victims. Ibid. Nothing about the crimes in either county indicated a single period of aberrant behavior. Ibid. Indeed, defendant's prior court history indicates that he was convicted on multiple occasions over a period of years. The judge acted well within his sentencing discretion in imposing consecutive sentences; we find no basis for remanding for a statement of reasons.


After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The first of those arguments is defendant's challenge to the admissibility of certain portions of Harris's testimony recounting his investigation in which he allegedly expressed an opinion as to defendant's guilt and improperly bolstered the victim's testimony. The second is a claim that Harris impermissibly testified that defendant's arrest was pursuant to a warrant. Defendant did not object but now contends that admission of this testimony was plain error. The third is defendant's contention that the victim's testimony mentioning defendant's prior incarceration constituted reversible error notwithstanding the court's curative instructions.


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