On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1466.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Alvarez.
Following a trial by jury, defendant Kevin Hudson was convicted of: third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), as a lesser included offense of second-degree aggravated assault (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count five); third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count six); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven).*fn1 On count four, the judge imposed an extended term sentence of seven years imprisonment, subject to a three and one-half year parole ineligibility term. On counts five, six and seven, the judge imposed a five-year term of imprisonment on each count, subject to a two and one-half year parole ineligibility period, each count to run concurrent to the others and concurrent to count four.
On appeal, defendant raises the following claims:
I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR AGGRAVATED ASSAULT.
II. FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
III. THE PROSECUTION'S INTRODUCTION INTO EVIDENCE OF INADMISSIBLE HEARSAY CONCERNING THE CAUSE OF THE VICTIM'S INJURIES CONTAINED IN A REDACTED HOSPITAL REPORT ADMITTED AS A BUSINESS RECORD INFRINGED DEFENDANT'S CONSTITUTIONAL RIGHTS AND DENIED HIM A FAIR TRIAL. (Not Raised Below).
IV. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR CRIMINAL RESTRAINT.
V. FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF FALSE IMPRISONMENT DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
VI. THE TRIAL COURT'S INSTRUCTIONS ON TERRORISTIC THREAT [SIC] FAILED TO CONVEY A SUFFICIENT DEFINITION OF THE OFFENSE, DENYING DEFENDANT A FAIR TRIAL. FURTHERMORE, THERE WAS INSUFFICIENT EVIDENCE FOR A CONVICTION UNDER SUBSECTION b. (Partially Raised Below).
VII. THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.
VIII. DEFENDANT'S ACQUITTAL OF FOURTH DEGREE UNLAWFUL POSSESSION OF A WEAPON PRECLUDED HIS CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Not Raised Below).
IX. THE CONVICTION FOR TERRORISTIC THREAT [SIC] SHOULD HAVE BEEN MERGED WITH THE COUNT ON AGGRAVATED ASSAULT, AND THE SENTENCE WAS MANIFESTLY EXCESSIVE.
We reject each of these contentions and affirm defendant's conviction and sentence.
The events charged in the indictment arise from an incident that began on the evening of February 6, 2006. On that night, Gillian Renaud was at a laundromat near her apartment when defendant, her boyfriend of approximately five years, entered the laundromat and demanded Renaud give him money because he was "stressed out" and needed money to buy cigarettes. When Renaud told him she had no money other than the quarters she was using for the laundry, defendant left.
After finishing the laundry, Renaud returned to the apartment she shared with defendant and her infant son. When defendant again angrily demanded money, Renaud told defendant to "leave [her] alone." Defendant responded by throwing a plate to the floor, where it shattered, and a shard cut Renaud's foot. After seizing Renaud's remaining coins and her cell phone from her pocketbook, defendant pushed the television off its stand and onto the floor. When Renaud began to cry because of the gash on her foot, defendant shoved a plastic bottle filled with coins against her injured foot and said, "[y]ou crying for that? You crying for that? . . . You have all that mouth, you going to cry for that?" Defendant then stormed out.
Fearful of defendant's escalating anger and what else he might do, Renaud picked up the telephone to call police, but the phone line was dead. She then decided to walk to a nearby gas station to use the pay phone, and while walking she "kept looking around to see if anyone was behind [her] because [she] was . . . real scared." Ultimately, Renaud decided not to call the police because she feared police would not reach her in time if defendant "came around."
Shortly after Renaud returned to the apartment, defendant arrived. He repeatedly demanded she tell him why she went to the Exxon station and whether she had called police. Each time, she told him she had not done so and she asked him to leave her alone. Defendant became even more angry and shoved Renaud down on the bed. While angrily demanding that she tell him why she was at the Exxon station, defendant held a black object against Renaud's neck, which she believed was a knife because "it felt cold." After Renaud told him that she "only got a drink" at the Exxon station, defendant said, "don't mess with me . . . because I can just cut you, cut your jugular vein and just leave you right here . . . to die." As defendant said that, he plugged the telephone into the jack and said, "you woman enough, here, call the cops."
As soon as defendant left the bedroom, Renaud locked the door because "[defendant] was acting real crazy." After hearing the door being locked, defendant started banging on the door and ordered Renaud to unlock it. Renaud remained frightened and was anxious to see if defendant had left the apartment or had calmed down. Consequently, over the course of the night, she emerged from the bedroom, ostensibly to discard soiled diapers. Her real purpose was to find out whether defendant had left the apartment. He had not.
In the morning of February 7, 2006, while Renaud was preparing to leave for work, defendant instructed her to call the hospital where she worked and tell her supervisor she would not be at work that day. When asked whether she could have refused to do what defendant instructed, Renaud answered, "I wasn't going to say no. He was already mad. I didn't want to make him any angrier."
Renaud believed that if she could find an excuse to depart the apartment, and leave defendant by himself, he might calm down. She dressed her son and told defendant she was taking the baby to his pediatrician, but defendant did not believe her. He said in an accusatory tone, "you're lying." He removed the baby's hat and coat and told Renaud he would not permit her to take the baby outside. All the while, defendant repeatedly asked her whether she was leaving the apartment "to go to the police." Each time he asked her the question, she remained silent.
According to Renaud, "that's when he grabbed me by the neck and started choking me and he said, 'I'm going to ask you again, are you going to the police?'" At that point he began to apply so much pressure to her neck that it became difficult for her to breathe. According to Renaud, "all of a sudden" the violence escalated and defendant began punching her in the face and "just keep on hitting me." Defendant punched her in the face "four or five times," so hard she could no longer see out of her right eye. When asked whether she was able to defend herself or block his punches, Renaud answered, "[n]o, because he was on top of me. I couldn't get my hands loose." When Renaud cried out "why are you doing this," defendant suddenly stopped and said he was sorry.
At that point, the telephone rang. By looking at the caller identification defendant realized Renaud's friend Telia Smith was calling. Defendant instructed Renaud to answer the phone and tell Telia she had fallen down and ...