On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 06-03-377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 18, 2009
Before Judges Stern, Graves and Harris.
After a bench trial, defendant was found not guilty of conspiracy to commit aggravated assault and two counts of aggravated assault.*fn1 He was found guilty of conspiracy to commit terroristic threats as a lesser-included offense to conspiracy to commit aggravated assault in violation of N.J.S.A. 2C:5-2 and 2C:12-3. He was sentenced to probation for two years with 280 days to be served in the Bergen County Jail as a condition of probation.
Defendant now argues that "conspiracy to commit a terroristic threat is not a lesser included offense of second degree aggravated assault [and] therefore, the trial court erred by finding Mr. Massimi guilty of the lesser included offense," "the trial court erred by considering an alleged lesser included offense that was not specifically included or discussed during the charge conference pursuant to R. 1:8-7(b)," and "the sentence imposed was manifestly excessive."
The trial dealt with an attack on defendant's brother-in- law. For purposes of this opinion, we incorporate an abridged version of the statement of facts as contained in the State's brief:
In September 2005, Michael Middleton, a [forty] year old resident of Newborugh [sic], New York, with six prior felony convictions, met defendant Frederick Massimi at a restaurant in that town called Chianti's. The owner of Chianti's, John Frontier, introduced Mr. Middleton to defendant Massimi.
A short time later, defendant and Mr. Middleton left the restaurant and took a short walk. According to Mr. Middleton, at this time, defendant told Mr. Middleton that he wanted someone "beaten up," specifically, hit in the legs with a bat, and "something" broken. Defendant offered to pay $3000 for this beating.
Following his meeting with defendant, Mr. Middleton called Kevin Bennett, someone he met while incarcerated in New York. Mr. Bennett agreed to take the "job," and called defendant to tell him.
[At a meeting with Middleton and Bennett] [d]efendant told Middleton the intended victim, a medium built male, drove a black Denali and gave Middleton the vehicle's license plate number. Defendant also told Middleton and Bennett that the intended victim arrived at the gym [to which they drove in defendant's late model Mercedes] about 4:30 [a.m.] or 5:30 a.m., and that at this early hour no one else would be in the gym parking lot and surrounding area.
During this meeting, defendant and Middleton again discussed the subject of payment in the amount $3000. Defendant agreed to pay the "fee" after the job was accomplished the following week.
On the morning of September 29, 2005, [Kevin] Bennett set his alarm for 4:00 a.m. and drove to The Gym in Montvale, New Jersey....
Sometime between 5:00 [a.m.] and 5:30 a.m., a black SUV bearing the license plate number that defendant had supplied pulled into the gym's parking lot. The driver of the SUV, Donald Dinallo, got out of the car, retrieved a gym bag from the rear seat and closed the car door. At this point, Bennett ran toward the man and hit him in the right leg, between his knee and ankle, with the bat. The man did not fall down, so Bennett aimed a blow at Dinallo's leg. Dinallo tried to grab the bat from Bennett, so the second blow hit Dinallo's hand. A third swing of the bat resulted in another blow to Dinallo's leg and caused him to fall. Immediately thereafter, Dinallo got back up and ran into the gym.
Bennett ran back to his white Ford SUV and drove away. A short time later, the police stopped him. [He was not immediately arrested, but police obtained sufficient information to ...