On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-04-1153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
The jury found defendant guilty of all counts in the indictment against him except count seven,*fn1 as follows: (1) first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; (2) second-degree aggravated assault (attempting to cause serious bodily injury), N.J.S.A. 2C:12-1b(1); (3) fourth-degree aggravated assault (pointing a firearm), N.J.S.A. 2C:12-1b(4); (4) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; (5) third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b; (6) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c; (8) third-degree terroristic threats, N.J.S.A. 2C:12-3; and (9) second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. After merging counts two and four with count one, Judge Schuck sentenced defendant on count one to sixteen years imprisonment, subject to an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count nine, the judge imposed a consecutive sentence of seven years imprisonment with a five-year parole disqualifier. On all other counts, the defendant received sentences that were ordered to be served concurrent with count one, as follows: on count three, eighteen months imprisonment without parole eligibility; on count five, four years imprisonment; on count six, four years imprisonment; and on count eight, four years imprisonment.
On appeal, defendant argues:
THE IMPROPER ADMISSION OF TESTIMONY REGARDING DEFENDANT'S ALLEGED PRIOR VERBAL AND PHYSICAL ABUSE OF THE VICTIM VIOLATED N.J.R.E. 404(b) AND DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S LIMITING INSTRUCTION FAILED TO EXPLAIN THE PERMISSIBLE USES OF THE 404(B) EVIDENCE WITHIN THE CONTEXT OF THIS CASE. (Not Raised Below).
THE PROSECUTOR ACTED IMPROPERLY BY SUGGESTING TO THE JURY THAT AN ACQUITTAL WOULD BE AN INJUSTICE. (Not Raised Below).
THE COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO REPRESENT HIMSELF WHEN IT REFUSED TO GRANT AN ADJOURNMENT TO ALLOW NEW COUNSEL TO BE SUBSTITUTED AND FAILED TO INFORM DEFENDANT OF HIS RIGHT TO DISPENSE WITH COUNSEL TO WHOM HE OBJECTED AND TO REPRESENT HIMSELF.
DEFENDANT'S SENTENCE IS EXCESSIVE.
We reject these arguments and affirm.
The victim of the crimes was defendant's estranged wife, Reenatos Leak. She and defendant had known each other since childhood, had been in a romantic relationship since 1975, were married in 1982, and had three children. By the time of trial, they were both in their early fifties. They had separated in June 2006. The crimes occurred on November 1, 2006.
As of November 1, 2006, Reenatos was living in an apartment in the same apartment complex in Barrington where she and defendant had previously lived, and where defendant was still living. We now set forth the version of events described by Reenatos in her trial testimony.
On the evening of November 1, 2006, defendant called Reenatos and told her he had been pulled over by the police for traffic violations and needed money for bail. He told her to go to his apartment, where she would find an envelope secreted near the front door with the key to the apartment in it. He told her to go into the closet and take money out of the gray coat pocket hanging there. He said he needed about $1100.
At about 8:30 p.m., Reenatos went to defendant's apartment, found the key, and let herself in. Fearing for her safety based upon a history of violent and threatening behavior by defendant (which we will later describe), she left the engine running and her flashers on as she parked the car, and took her cell phone with her into defendant's apartment. As she stood by the closet door, defendant emerged from the front bedroom and pointed a shotgun at her. Reenatos immediately screamed "oh my God, he's going to kill me." Defendant told her to shut up or he would kill her. She attempted to run while dialing 911 on her cell phone, but defendant knocked the phone out of her hand before she could complete the call, grabbed her, and threw her into the wall. In the course of this contact, Reenatos' glasses were knocked off. She tried to push defendant away, but he began choking and hitting her. She continued to cry out for help, screaming that defendant was going to kill her.
After hitting the wall, Reenatos slid to the floor. Defendant got on top of her as she lay on her back and began choking her, telling her to "shut up or he was going to kill [her]." Defendant pushed his hand into Reenatos' mouth to stop her from screaming and put pressure on her throat, which made it difficult for her to breathe. Reenatos believed defendant was trying to kill her.
Defendant picked Reenatos up and threw her into the back bedroom. At this point, Reenatos recalled seeing the gun in defendant's hand. She screamed "someone please hear me. Oh, my God, he's going to kill me." Defendant again began choking her and continued threatening to kill her.
Meanwhile, neighbors hearing the commotion called the police, who then arrived and knocked on the door. Defendant left the bedroom and answered the door. He denied that anyone was screaming from his apartment, but Reenatos came out of the bedroom and informed the police that indeed she had been screaming.
Reenatos told the police what had happened, and the police arrested defendant. Neighbors were present, and they comforted Reenatos, who was hysterical. The neighbors and police officers ...