On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-04-294.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Baxter and Coburn.
Following a trial by jury, defendant appeals from his December 12, 2008 conviction on charges of third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count one) and third- degree attempted criminal restraint, N.J.S.A. 2C:13-2(a) and N.J.S.A. 2C:5-1(a)(2) (count two), for which the judge sentenced him to concurrent five-year terms of imprisonment. The judge ordered that such sentence be served consecutively to a 2005 sentence, from which defendant was still on parole. On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED BY REFUSING TO DECLARE A MISTRIAL AFTER THE JURY WAS REPEATEDLY INFORMED OF THE EXISTENCE OF A RESTRAINING ORDER AGAINST APPELLANT AND THAT APPELLANT WAS ON ISP WHEN THE INSTANT CRIMES OCCURRED.
A. Repeated mentioning of the existence of a restraining order against Appellant was devastatingly prejudicial and violative of the clear mandates of the New Jersey Supreme Court in Vallejo and Ch[e]nique-Puey.
B. Mention that Appellant was serving a non-custodial sentence on a prior crime was highly prejudicial and clearly violative of the rules of evidence and controlling case law.
II. THE TRIAL COURT ERRED BY NOT DISMISSING THE ENTIRE JURY AFTER JUROR 13 PREMATURELY MADE HER DECISION AS TO APPELLANT'S GUILT.
III. THE TRIAL COURT ERRED IN ITS ADMISSION OF APPELLANT'S ENTIRE PRIOR CRIMINAL RECORD FOR IMPEACHMENT USE UNDER SANDS/BRUNSON.
IV. THE TRIAL COURT ERRED IN ITS ADMISSION OF WITNESS LAUREN CROMWELL'S PRIOR STATEMENT UNDER N.J.R.E. 803(a)(1).
V. THE TRIAL COURT ERRED IN ITS ADMISSION OF EVIDENCE OF APPELLANT'S CHARACTER IN VIOLATION OF N.J.R.E. 404(a).
VI. THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT'S MOTION FOR AN ACQUITTAL.
VII. THE TRIAL COURT IMPROPERLY SENTENCED APPELLANT.
A. The trial court improperly decided on aggravating factors in this case before the jury had even deliberated and gave a statement of reasons that did not even pertain to the instant case.
B. The trial court improperly assessed the aggravating and mitigating factors in this case.
C. The trial court imposed an excessive sentence upon Appellant.
We reject each of these claims and affirm defendant's conviction and sentence.
On December 2, 2006, defendant's former girlfriend, Stevi Kabbeko, arrived at the home of Lauren Crowell,*fn1 defendant's cousin, to leave fifty dollars to reimburse defendant for cell phone charges that had been charged to his account. Approximately fifteen to twenty minutes later, defendant arrived at Crowell's house with a friend. Kabbeko testified that defendant began screaming at her repeatedly to "get the f**k out." Kabbeko stated that defendant was very angry and grabbed her cell phone off the table while she handed him the fifty dollars.
After defendant pushed her out the door, Kabbeko walked to the side of the yard where defendant continued screaming at her and began calling her vulgar names. After approximately twenty minutes, defendant calmed down and the two walked toward his car, where he had placed Kabbeko's cell phone. When she asked him to return it to her, he refused, telling her that the phone "was in his name" and that he "paid for it." Kabbeko refused to leave without her cell phone because she had stored telephone numbers in the phone that were essential to her career as an aspiring singer and entertainer.
According to Kabbeko, defendant angrily told her he wanted her "to suffer like he had to suffer" and that "if he could not have [her], nobody could." Defendant then told Kabbeko he intended to put her in the trunk of her car. He was able to shove her inside the trunk even though she had tried grabbing defendant, the car doors, the trunk lid and whatever else she could to prevent him from succeeding.
While this was occurring, defendant told Kabbeko that she "was going to suffer like he did" and that "he was going to kill [her]." According to Kabbeko, defendant told her "[e]ven God can't help you now."
It was at this point that she heard Crowell say "are you crazy" and "what are you doing." Kabbeko remembered someone pulling her from the trunk of the car. The next day, she reported the incident to police and obtained a domestic violence restraining order.
During her testimony, Kabbeko twice referred to seeking a restraining order. On the first occasion, she testified without objection that when she arrived at police headquarters, the officer asked her if she wanted to "press charges or anything" to which Kabbeko responded, "I just want this restraining order." She did not specify whether a restraining order had been issued.
Kabbeko's second reference to a domestic violence restraining order came during her redirect testimony when the prosecutor followed up on a portion of the cross-examination, in which Kabbeko had been asked whether she went to the police station to accuse defendant of a crime only because she had learned that defendant had already gone to police accusing her of having assaulted ...