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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Alvarez and Coburn.
Defendant Kevin Hudson was convicted by a jury of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and fourth-degree unlawful possession of a weapon (an unknown sharp object) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d. He was sentenced on March 6, 2009, as a discretionary extended-term offender, N.J.S.A. 2C:44-3, to five years with twenty-four months of parole ineligibility, consecutive to a sentence he was then serving. Appropriate fines and penalties were imposed. Defendant appeals and we affirm.
Defendant raises the following points:
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR AGGRAVATED ASSAULT. THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL. IN THE ALTERNATIVE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE COURT'S INSTRUCTION ON SECOND DEGREE AGGRAVATED ASSAULT (SERIOUS BODILY INJURY) AND THIRD DEGREE AGGRAVATED ASSAULT (SIGNIFICANT BODILY INJURY) AND THE FAILURE TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT CONSTITUTED PLAIN ERROR. (Not Raised Below).
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR FOURTH DEGREE UNLAWFUL POSSESSION OF A WEAPON (AN UNKNOWN SHARP OBJECT) ON OR ABOUT FEBRUARY 8, 2006. (Partially Raised Below).
THE COURT'S INSTRUCTION ON POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR A LAWFUL USE WAS LEGALLY ERRONEOUS AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (Not Raised Below).
THE SENTENCE WAS MANIFESTLY EXCESSIVE AND ILLEGAL.
The twenty-three-count indictment initially charged defendant with crimes against two victims, G.B., the victim in this case, and a second woman with whom defendant was romantically involved. Defendant's severance motion was granted; thus, he was already serving an extended-term sentence of seven years imprisonment, subject to three and one-half years parole ineligibility, for the convictions as to the other victim when tried on the charges as to G.B. The charged conduct was separate and distinct as to each woman.
Eighteen counts in the indictment related to G.B., including attempted murder. Four counts were dismissed on the State's application before trial began.*fn1 Accordingly defendant was tried on the following: (1) two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); (2) three counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; (3) three counts of fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d; (4) two counts of first-degree kidnapping, N.J.S.A. 2C:13-1b (prior to trial, one of these counts was amended to attempted kidnapping); (5) one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3); (6) one count of second-degree sexual assault, N.J.S.A. 2C:14-2c(1); and (7) one count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7).
Defendant's convictions result from a February 8, 2006 incident in Asbury Park. G.B. was then in her early twenties and defendant was forty-six. The two had been casually involved for a little over a year. On that date, G.B. arrived at the train station nearest her home close to midnight. She testified that defendant approached her from the porch of an abandoned house and wanted to speak to her. She refused, and he pulled at her arm and insisted. G.B. claimed that defendant had slashed her cheeks and otherwise assaulted her months earlier, conduct that was detailed in the counts of the indictment of which defendant was acquitted. Although she had received thirty-six stitches to treat the largest cut as a result of the earlier incident, was permanently scarred, and reported the attack, she did not initially identify defendant as her assailant and claimed that some unknown person had tried to rob her. She said she was afraid of him.
When defendant approached G.B. on February 8, she was afraid to rebuff him. Defendant walked G.B. through the parking lots of surrounding apartment complexes as he unsuccessfully tried to gain entry into the basement of each building. After a couple of hours, they entered a hallway where, G.B. testified, defendant proceeded to engage in sexual intercourse with her. After he finished, they resumed walking outside. G.B. told defendant she wanted to go home and attempted to flee. Defendant chased her around a car, grabbed her, and wrestled her into submission, giving her a small black eye in the process. They continued walking around the neighborhood, entered another building, and went to the top of the stairs. G.B. sat down and fell asleep. Defendant was seated two steps down from her when she awakened, but then got up and sat on the steps above her so he could rummage through her bag. He asked if he could listen to her cell phone messages. She immediately began to delete messages from another man, but defendant caught her. He took a plastic bag, placed it over her head, and attempted to suffocate her. G.B. poked a hole in the bag with her finger. Defendant said she was making him angry and placed a second bag over her head through which she also poked a hole so she could breathe.
Defendant then pulled out what G.B. described as looking like an "eyebrow archer," a razor blade with a plastic handle.
She exclaimed, "oh you're going to cut me again," and defendant confirmed her that he was indeed going to "cut [her] up." He sliced the blade over the fresh scar on her face, inflicting a new tiny cut which did not require medical attention. He then placed the eyebrow archer against her neck and made several additional cuts. Eventually, as the two sat on the top of the stairs, G.B. saw daylight through a window and heard people stirring. They left the building, when G.B. coincidentally saw Officer Charles Graves, to whom she had reported the prior assault. Defendant saw Graves as well, and told G.B. that here was her opportunity to go to police. She said nothing to Graves, and defendant let her go home. G.B. explained that she said nothing to Graves because of her fear of defendant. She did not call 9-1-1 or her mother during that night because ...