On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-755-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...