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State v. Pfrommer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL P. PFROMMER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 05-03-0232 and 07-08-0723.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 12, 2010

Before Judges Fisher and Sapp-Peterson.

Defendant appeals his conviction, following a jury trial, of third-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a).

The evidence presented at trial disclosed that during the evening of September 19, 2006, police responded to a report of a disturbance on New Street in the Borough of Clayton (Borough). Two witnesses testified for the State: the neighbor who called police and reported the disturbance, and Borough police officer, Stanley Williams. Officer Williams testified that he knew defendant and defendant's girlfriend, the alleged victim. He indicated that he was on duty that evening and responded to the address. Sgt. Mastella, who was also on duty but did not testify at trial, separately responded to the call. Upon arrival, Officer Williams, while standing outside of the residence, repeatedly heard a female saying, "You're hurting me." He also heard a female voice say "Leave me alone. Why are you -- why are you doing this? Get off of me." He knocked on the door several times but received no response. The door, however, opened halfway by itself. Believing that there was an "immediate situation of someone getting hurt[,]" he entered the residence.

Once inside the two-story residence, Officer Williams called out defendant's name and defendant came halfway down the stairs. He explained to defendant why he was there, to which defendant responded with an expletive, still demanding to know why Williams was there. Officer Williams could hear a female stating that she was getting out of there, and as he attempted to ascend the steps to check on her, defendant told him that he would not allow him to come up the steps or see her. Ignoring defendant, Officer Williams testified that he started up the steps, at which point defendant put his hand on his shoulders and pushed him, causing him to back up two steps. After regaining his balance, Officer Williams continued up the stairs past defendant, at which point defendant grabbed the officer's legs, causing him to fall directly on his kneecaps. He explained that he was able to break free and run up the steps to where the female was located. When he confronted her, she told him that defendant would not allow her to leave, was holding her down and that she wanted to leave. Defendant, at that time, was downstairs with Sgt. Mastella, and Officer Williams told the sergeant to "place him under arrest."

Both defendant and his girlfriend testified. The girlfriend denied that there had been any physical altercation at the time of the reported incident. She claimed that they had been arguing about him playing video games too much and about her "huffing" to get high. She went upstairs to hide from him and passed out. She awakened to defendant attempting to revive her. Although she acknowledged under cross-examination that her written statement to police on the night of the incident indicated that defendant was restraining her, during her testimony she stated that she did not remember how defendant was restraining her but that "he wasn't holding [her] against [her] will or anything." She also testified that she heard defendant screaming and that when she went out of the room where she had been, she saw defendant laying on his back on the staircase and Officer Williams stepping over him as he went up the stairs.

In defendant's testimony, he indicated that he and his girlfriend had been arguing earlier in the evening and when he realized that she wasn't around, he went to look for her and found the bathroom door locked. He climbed out of the bedroom window onto the roof and into the bathroom window and saw her "laying wedged between the door [and] the wall, foam coming out of her mouth and her eyes completely rolled in the back of her head." He threw water on her, administered CPR and started yelling at her because he was upset with her about what she had done to herself. He did not call police because he believed that he had resuscitated her and she was conscious. He did, however, call her father, who indicated that he would come to the house. When he heard a noise, he believed that it was his girlfriend's father but instead it was Officer Williams. He indicated that when he asked Officer Williams why he was there, the officer responded that he was there to get defendant's girlfriend and told him to get out of the way. Defendant indicated that he asked Officer Williams whether he had a warrant and was given no response. He then asked the officer to leave his house and followed that with an expletive, again telling him to leave his house. He indicated that he did not move and stood in the stairway, which he described as "not much wider than me." Defendant testified that Officer Williams, who was "a whole foot taller than [him,]... put his head down, and tackled [him]... like ran through [him] like the way a linebacker would run through a quarterback, put his head - - his head in the shoulder into [his] chest and pushed [him] down."

The jury convicted defendant of the offense. In addition to fines and penalties, the court imposed a three-year custodial term, as well as a concurrent three-year custodial term for a violation of probation stemming from the aggravated assault conviction. Defendant was separately convicted, in a bench trial arising out of the September 16 incident, of obstruction of the administration of law, N.J.S.A. 2C:29-1, a disorderly persons offense that the court merged with the aggravated assault conviction. On appeal, defendant raises the following points for our consideration:

POINT ONE

THE COURT BELOW ERRED IN DENYING DEFENDANT'S REQUEST TO INSTRUCT THE JURY THEY COULD DRAW AN ADVERSE INFERENCE REGARDING THE PROSECUTOR'S FAILURE TO CALL SERGEANT MASTELLA AS A WITNESS IN THEIR DIRECT CASE.

POINT TWO

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND THE COURT IMPROPERLY BALANCED AGGRAVATING AND MITIGATING FACTORS AS REQUIRED BY LAW.

Defendant's chief complaint is that the trial court erred in disallowing a Clawans charge to the jury because Sgt. Mastella was not produced as a witness, thereby justifying the inference that his testimony would have been adverse to the testimony of Officer Williams. State v. Clawans, 38 N.J. 162, 170-71. (1962). Judge Christine Allen Jackson declined to give a Clawans charge, finding that Sgt. Mastella was equally available to both the State and defendant and he did not author any report or make a statement that would suggest that his testimony would have been superior to that of Officer Williams. We agree.

"For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved[.]" Id. at 171. Moreover, a Clawans charge is generally inappropriate where the witness is equally available to both parties. Ibid. Here, although retired at the time of trial, there was nothing in the record to suggest that the sergeant could not have been subpoenaed. Further, from the record, there is no indication that his testimony would have been superior to that of Officer Williams or, for that matter, defendant.

Defendant did not deny that he refused to allow Officer Williams to go upstairs to check on the female or that he told him to leave and used an expletive in doing so. Defendant also testified that his stairway was about the width of his body and that he blocked the officer's path. Thus, whether the officer injured his knees because defendant grabbed his legs or, as defendant claimed, he tackled defendant in an effort to get by does not make a difference. An assault within the meaning of N.J.S.A. 2C:12-1(a)(1) occurs when one acts purposely, knowingly, or recklessly in causing bodily injury. The court instructed the jury on all three mental elements, and the jury, if it found defendant's version of the incident credible, could have found beyond a reasonable doubt that defendant recklessly caused bodily injury to Officer Williams when he deliberately blocked his path as the officer was attempting to investigate the plight of the person who he heard repeatedly stating "you're hurting me."

We have previously stressed the need for trial courts to exercise caution in authorizing the inference contained in a Clawans charge. State v. Velasquez, 391 N.J. Super. 291, 306-07 (App. Div. 2007) (citing Parentini v. S. Klein Dep't Stores, Inc., 94 N.J. Super. 452, 456 (App. Div.), certif. denied, 49 N.J. 371 (1967)). Nothing in this record suggests that a departure from this approach was warranted. We find no error in Judge Jackson's ruling declining to instruct the jury on a Clawans adverse inference here.

Defendant's remaining argument that the sentence imposed was excessive is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20100630

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