On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1333.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Gilroy and Simonelli.
A jury convicted defendant of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5d (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). The trial judge merged count three with count one and sentenced defendant to a six-year term of imprisonment with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and three years parole supervision upon release on count one, and a concurrent one-year term of imprisonment on count two. The judge also imposed the appropriate assessments, penalties and fees.
On appeal, defendant raises the following contentions:
POINT I - THE PROSECUTOR'S MISCONDUCT IN COMMENTING ON DEFENDANT'S PRE- AND POST-ARREST SILENCE DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
POINT II - THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We reject these contentions and affirm.
The incident giving rise to defendant's conviction occurred in the early evening hours of February 12, 2006, at the apartment of Qamar Palmer*fn1 in East Orange. According to Palmer, she and defendant were friends, having met a few years earlier at a nursing home where she was recovering from a stroke that left her paralyzed on the right side of her body. The two were not intimate because, in addition to the stroke, she had told defendant many times that she was HIV positive.
Palmer had asked defendant to leave her apartment because it was getting late and she wanted to go to bed. Defendant left but returned shortly thereafter because it was raining. Palmer told defendant that he could get something to eat but she was going to bed. She also told him that she "wanted to stop seeing him so much because he was getting on my nerve." She denied having an argument with defendant over money.
Shortly after going to bed, Palmer was awakened by a burning sensation, which caused her to leap from the bed, take off all of her clothes, and run outside into the hallway, where she met Lawrence Powell, the building superintendent. Palmer suffered second-degree burns on sixteen percent of her body.
Powell testified that at approximately 7:15 p.m., he saw Palmer run from her apartment into the hallway completely nude, screaming, "Why did he do that?... I was asleep. He burned me." The skin around Palmer's neck and chest was "beginning to bubble up" and the skin on her left elbow to shoulder was "hanging off."
Powell went into the apartment, where he saw defendant standing in the living room. Defendant, who had no injuries, then sat down in a chair by the bedroom door. Powell saw a pot with a rag around its handle on a stand located where defendant was sitting. Powell asked defendant what happened to Palmer, and defendant responded, "I poured... hot water and butter on her" because "she made me mad... [a]nd she's spen[t] my money. She got my money." Powell called 9-1-1. Powell then went ...