On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-08-1256.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Ashrafi.
Defendant Richard Van Hise appeals from his conviction and sentence for resisting arrest and assaulting a police officer. We affirm.
Defendant was indicted on five third-degree charges: (1) aggravated assault of his wife, N.J.S.A. 2C:12-1b(7); (2) aggravated assault of a police officer with injury inflicted, N.J.S.A. 2C:12-1b(5)(a); (3) criminal restraint of his wife, N.J.S.A. 2C:13-2a; (4) resisting arrest, N.J.S.A. 2C:29-2a(3)(a); and (5) making a terroristic threat, N.J.S.A. 2C:12-3a.
From the evidence at trial, the jury could find the following facts. On March 16, 2006, Florence Township police responded several times to defendant's home to investigate noise complaints. At 9:10 p.m., the police spoke to defendant's wife and left. Twenty minutes later, they received another noise complaint.
Officers James Ford and Mauro Correnti arrived at defendant's home on the second complaint at 9:45 p.m. They heard yelling and screaming from an upstairs window. Then they saw defendant's wife run out the back door "out of control" and without clothes. Defendant, also naked, went after his wife and pulled her back into the house. As the officers got to the door, they saw defendant's wife on the floor on her back and defendant straddled on top of her with one hand over her mouth and the other on her throat or upper chest pinning her down. The police ordered defendant to get off his wife several times, but defendant did not comply. The officers then pulled defendant off and attempted to arrest him.
Defendant physically resisted the officers' attempts to handcuff him by stiffening his arms and refusing to put them behind his back, and a scuffle ensued in the kitchen. After being forcibly handcuffed, defendant continued to yell, curse, and scream, and he kicked one of the officers in the groin. The officers threw him to the ground, and he struggled and kicked his legs while they subdued him.
The officers took defendant outside, but he became combative again and fought their attempts to seat him in a police car. He kicked an officer again and continued verbally berating the officers. Inside the police car, defendant ranted and flailed about and eventually kicked out a side window.
While being processed at the police station and transported to county jail, defendant made verbal threats, including a threat to kill one of the officers after his release from custody. A few minutes after that threat, defendant apologized and said he did not mean it.
Video recordings from the dashboards of the police cars, and audio recordings made from the officers' communication devices, were used in examination of the officers and played for the jury. The State also introduced in evidence photographs of defendant's wife taken the day after the arrest displaying injury to her face. However, defendant's wife refused to testify or otherwise cooperate with the police.
Defendant testified in his defense. He said on the date of the incident, his wife called him at work extremely upset and said that DYFS (the Division of Youth and Family Services) had just removed their two children from their home. Defendant went home immediately and, over the next two hours, drank a bottle and a half of tequila with his wife. When the police came to his home a second time, his wife suddenly ran outside. He followed and pulled her back into the house because he did not want her to be arrested. He testified he was highly intoxicated at the time of the incident and had no recollection of resisting arrest, kicking the officer, or making a verbal threat.
At the close of evidence, the court granted defendant's motion to dismiss the third count, criminal restraint of the wife, on the ground that the State had not presented sufficient evidence for it to be considered by the jury. The court denied defendant's motion to dismiss other counts.
The jury acquitted defendant of aggravated assault of his wife and making a terroristic threat against a police officer. It found him guilty on count four, third-degree resisting arrest, and a lesser-included offense under count two, fourth- degree aggravated assault of a police officer without injury. The court sentenced defendant to five years in prison with two years without parole eligibility on the charge of resisting arrest and a concurrent term of eighteen months in prison on the charge of aggravated assault.
On appeal, defendant argues the ...