On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-03-0524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 21, 2010
Before Judges Payne and C.L. Miniman.
Defendants Johnny Robertson (Robertson) and Zyanaitha Denard (Denard) appeal final judgments entered on December 17, 2007, convicting them of second-degree aggravated assault, con- trary to N.J.S.A. 2C:12-1b(1), and false imprisonment, a lesser- included disorderly persons offense, contrary to N.J.S.A. 2C:13- 3, on which an aggregate sentence of six years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was imposed on Robertson and an aggregate sentence of seven years subject to NERA was imposed on Denard. We affirm.
These are the third and fourth appeals arising out of a joint trial of four defendants charged with committing multiple offenses on September 4 and 5, 2006, in Jersey City. The first two appeals were decided on July 22, 2010. State v. Smith, Nos. A-3612-07 and A-3864-07 (App. Div. July 22, 2010). We summarized the evidence at trial in that opinion as follows:
In September 2006, Dennis Marando (Dennis) lived with his wife Lakeema in Jersey City, New Jersey. Zyanaitha Denard, Lakeema's friend, and Johnny Robertson, Lakeema's cousin, also lived with the Marandos at that time. On September 4, 2006, Dennis was visiting friends in Pennsylvania until approximately 9:00 p.m., at which time he left the Poconos area and drove home to Jersey City, arriving at approximately 10:30 p.m. He intended to pick up some personal items because he was having problems with Denard and Robertson, and he had decided to separate from his wife and vacate the apartment.
Upon arriving at the apartment, Dennis testified that he attempted to call his friends in the Poconos to inform them he arrived home. When he picked up the phone, Denard grabbed it, unplugged it, and threw it at a window. He testified that while Denard was asking him why he was leaving Lakeema, Robertson and Desmond Smith entered the room. Robertson then allegedly said to Dennis, "'You thought you could get away with this. But I think now we got you.'" Dennis testified that the threats continued, culminating with Denard telling Lakeema via a cell phone call that "'We got Dennis here.'" Lakeema allegedly responded, "'Don't let Dennis leave. Don't let him leave until I get there.'" Denard then took Dennis into the bathroom and began questioning him about his separation from Lakeema. Robertson and Smith remained outside the bathroom, where, according to Dennis, they said they "'can't let him out until Keema gets here.'"
Lakeema arrived after Dennis had been in the bathroom for about ten minutes. Dennis said she was "mad" and "angry" and would not let him say anything. Dennis testified that Lakeema first accused him of unspecified conduct, uttering profanities, and then began "punching [him] in [his] face, all over." Denard was still in the bathroom at this time, and Robertson and Smith were attempting to enter. During the struggle, Lakeema demanded $1500 from Dennis; he told her that "it was impossible to do that at that time."
Robertson and Smith then entered the bathroom, and the light was turned off. Dennis testified that "everyone was trying to hit me. I couldn't tell who was hitting me, but I could feel the blows coming from all sides." He was punched in his right eye, which started bleeding. Lakeema said she did not care what happened to Dennis, and Robertson allegedly said, "Why can't we just smoke this nigger and forget about the whole thing?" Dennis could not estimate the number of blows he received and never indicated to police that four individuals assaulted him. He remembered his wife saying to hit him in his bad eye, on which a cornea transplant had previously been performed. He eventually pushed his way out of the bathroom and went outside.
Once outside, Dennis got into the passenger side of his car, and Lakeema, because she had the car keys, got into the driver's seat. Dennis asked Lakeema to take him to the hospital; she responded by saying, "I don't care. That's your problem now." An ambulance then arrived; however, when asked if anyone called for an ambulance, Lakeema responded, "No," and the ambulance left. Dennis did not try to get the ambulance driver's attention.
Dennis then offered to give his assailants the money, and they drove to a local automatic teller machine (ATM). Once they arrived, everyone began looking for his ATM card, which Dennis said was in his jacket in the car trunk. Dennis then ran away from the car toward a Walgreen's, where he informed a security guard that he had been assaulted. After that, he saw a police car pull into a gas station across the street; he informed the police officer about what had transpired and told him that his assailants were in his car. The police officer called an ambulance, and Dennis received medical attention at Jersey City Medical Center (JCMC). He had surgery the next morning to treat the injuries to his right eye, which included a ruptured globe through the cornea and evisceration of the contents of his eye. He underwent a second surgery on the eye on December 13, 2006. Dennis remained blind in his right eye at the time of trial.
In the early morning hours of September 5, 2006, Officer Charles Taveras of the Jersey City Police Department effected a traffic stop of a car matching the description Dennis gave to the police. The car contained Lakeema, Denard, Smith, and Robertson. The four individuals were taken into custody and transported to JCMC to be identified by Dennis. Dennis positively identified them one at a time, and they were then taken to the police station. Lakeema, Smith, Robertson, and Denard were subsequently indicted on charges stemming from this incident. These appeals followed the entry of judgments of conviction.
At the conclusion of all of the evidence, the jury con- victed Robertson and Denard of second-degree aggravated assault and false imprisonment as a lesser-included disorderly persons offense to kidnapping. Robertson was sentenced to six years in prison subject to NERA on the aggravated-assault charge, and Denard was sentenced to seven years in prison subject to NERA on the same offense. They each ...