On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-01299.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Fuentes and Gilroy.
On December 1, 2005, a Union County Grand Jury charged defendant Yamilet Duran, along with co-defendants Marie Duran, her mother; and Zoila Morales, with second-degree aggravated assault by causing serious bodily injury to another, N.J.S.A. 2C:12-1b(1) (count one); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d (count three).*fn1 A jury found defendant and Morales guilty of third-degree aggravated assault by causing significant bodily injury to another, pursuant to N.J.S.A. 2C:12-1b(7), as a lesser-included offense of count one, and acquitted them of counts two and three. The same jury found Maria Duran guilty of all charges.
On September 29, 2006, the court sentenced defendant to 180 days in the Union County Correctional Facility through the Wristlet Program, and to a one-year period of probation. The court also imposed all mandatory fines and penalties. Lastly, the court directed defendant to pay $434 restitution to the Victims of Crime Compensation Board.*fn2
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL NOT ONLY WITH RESPECT TO COUNT [ONE] CHARGING SECOND DEGREE AGGRAVATED ASSAULT (SERIOUS BODILY INJURY) BUT ALSO WITH RESPECT TO THE LESSER INCLUDED OFFENSE OF THIRD DEGREE AGGRAVATED ASSAULT (SIGNIFICANT BODILY INJURY) OF WHICH THE DEFENDANT WAS EVENTUALLY CONVICTED.
We affirm and remand to enter a corrected judgment of conviction indicating that defendant was found guilty of count one by a jury.
We discern the following facts from the evidence presented to the jury during the State's case. On June 25, 2005, defendant, Morales, and Carolina Rodriguez attended a party, during which defendant and Rodriguez had a physical altercation. On June 27, 2005, defendant and Morales telephoned Rodriguez's boyfriend several times inquiring as to Rodriguez's whereabouts so that they could fight her.
Later that day, while Rodriguez stood outside of her apartment building in the City of Plainfield with her two young children, Maria Duran approached Rodriguez stating, "now do to me what you did to my daughter on Saturday, bitch. Why don't you take it on with me?" While Maria Duran grabbed Rodriguez's hair, defendant and Morales approached and one of them said: "Now we [are] going to fight." Defendant and Morales cornered Rodriguez against a handrail. While defendant punched Rodriguez, Maria Duran slashed the left side of Rodriguez's face with a kitchen knife. After Rodriguez grabbed the knife out of Maria Duran's hand, the three assailants fled.
Rodriguez telephoned 9-1-1, and Plainfield Patrolman James Stillman responded. Rodriguez informed Stillman what had occurred and gave Stillman the knife. The Plainfield Rescue Squad transported Rodriguez to Muhlenberg Hospital where she received thirty-five sutures to close the wound. Ten months post-assault, Rodriguez underwent surgery to reduce the residual scar.
At the end of the State's case, defendant moved for judgment of acquittal of count one.*fn3 Defendant contended that, although the State had presented evidence that Maria Duran assaulted Rodriguez with a knife, the State had failed to present evidence that defendant was aware that her mother possessed the knife prior to the assault. Defendant asserted that insufficient evidence existed for a jury to find her guilty beyond a reasonable doubt of aggravated ...