On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-3708.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Baxter.
Defendant William Singley appeals from a final judgment of conviction of fourth-degree assault by a motor vehicle, as a lesser-included offense of the charge of aggravated assault; simple assault, a disorderly persons offense, as a lesser-included charge of aggravated assault; and third-degree possession of a weapon for an unlawful purpose. He argues that
(1) inadmissible statements made by two State witnesses deprived him of his right to a fair trial; (2) the jury verdict was inconsistent and fatally deficient; and (3) the trial court abused its discretion at sentencing by imposing a custodial term. We have carefully considered defendant's arguments in light of the facts and applicable law, and for the following reasons, we affirm.
The proofs at trial established that on May 26, 2006, Diane Clark-Cook was working for the Department of Community Affairs of the State of New Jersey at its offices at South Harrison Street, East Orange. Shortly before 5:00 p.m., her son, Jared Cook, and his friend, Lood O'Librisi came to visit her at work. Clark-Cook, Cook and O'Librisi left at 5:00 p.m., accompanied by Clark-Cook's co-worker, Topaz Lovingood, who Cook intended to drive home.
Clark-Cook went to her car parked in front of her place of employment, while Cook, O'Librisi and Lovingood went to Cook's car parked in an adjacent parking lot. Before they arrived at their car, Lovingood's ex-boyfriend, defendant, sped into the lot, stepped out of the car and started yelling at Lovingood, questioning, pushing and grabbing her, "getting all up in her face . . . in an aggressive type of way."
Cook and O'Librisi tried to reason with defendant, but he ignored them and continued to pursue Lovingood. Defendant pinned Lovingood up against Cook's car and continued to question her. Cook and O'Librisi once again tried to reason with defendant. Then, Clark-Cook arrived at the scene in her vehicle, she parked, and stepped out of her car, called the police, and told Cook and O'Librisi not to get involved.
As defendant walked toward his car, he said that he was going to get his "heat" and his boys.*fn1 Clark-Cook then called the police a second time. Cook sat on the trunk of Clark-Cook's car in order to view the defendant's license plate. Next, defendant accelerated his car in reverse and hit Clark-Cook's car, knocking Cook off the trunk. Immediately after hitting Clark-Cook's car, defendant backed up, put the car into drive, and hit Clark-Cook mid-thigh with his car, knocking her to the ground. As Clark-Cook began to stand up, defendant drove his car into her again striking her in the abdomen and pinning her against one of the cars that was still there. Defendant then drove out of the parking lot and did not return.
Meanwhile, Nicola Swint was working as a security guard for the Division of Youth and Family Services at the Harrison Street address. She saw Clark-Cook get hit by a car, and fall to the ground. According to Swint, Clark-Cook did not get up. Swint saw the car speed away and that Clark-Cook was bloody on her lower extremities. Clark-Cook was bleeding from the right-side of her foot, her forearm, her shoulder, and her left knee. As a result of the incident, Clark-Cook testified that she received treatment for a tear in her left wrist, internal bleeding, and a torn rotator cuff. She underwent surgery for the rotator cuff. She requires physical therapy and has a permanent scar on her right shoulder from the rotator cuff surgery.
Approximately thirty-five minutes after the police were initially called, Officer Damon Johnson of the East Orange Police Department arrived on the scene. The officer spoke with Clark-Cook for about five minutes, before an ambulance transported her to East Orange General Hospital. The officer also spoke with Cook, O'Librisi and Lovingood. He learned and later included in his report, defendant's identity, what defendant was wearing, where defendant worked and that there was a pre-existing relationship between Lovingood and defendant.
As a result of this incident, an Essex County Grand Jury returned Indictment No. 06-12-3708 against defendant, charging him with two counts of second-degree aggravated assault contrary to N.J.S.A. 2C:12-1(b)(1) (counts one and two)*fn2 ; fourth-degree unlawful possession of a weapon (a motor vehicle) contrary to N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon (a motor vehicle) for an unlawful purpose contrary to N.J.S.A. 2C:39-4(d) (count four). Although defendant was aware of the trial date and had told his attorney he would be there, he did not appear. Hence, the trial was held in defendant's absence before Judge Ned M. Rosenberg and a jury over the course of four days - October 23, 24, 25 and 30, 2007.*fn3
Clark-Cook, Cook, O'Librisi, Swint, and Officer Johnson testified consistently with the facts described above. No witnesses testified on defendant's behalf.
On October 30, 2007, the jury returned its verdict, finding defendant guilty of third-degree possession of a weapon for an unlawful purpose on count four, and the lesser-included offenses of fourth-degree assault by a motor vehicle under N.J.S.A. 2C:12-1(c) on count one, and simple assault on count two under N.J.S.A. 2C:12-1(a)(3), a disorderly persons offense. The jury found defendant not guilty on the charge of unlawful possession of a weapon (count three).
At the sentencing hearing on November 12, 2008, at which defendant was in attendance, Judge Rosenberg merged count one of the indictment, assault by a motor vehicle, into count four, possession of a weapon for an unlawful purpose, and imposed a four-year term of imprisonment on count four, concurrent with a six-month period of incarceration on count two, simple assault. The court made findings regarding defendant's criminal, juvenile offense, and work history, and determined that aggravating factors three and nine applied. N.J.S.A. 2C:44-1(a)(3) and (9). Finding no mitigating factors, the judge concluded that the aggravating factors outweighed the mitigating factors, "in favor of a custodial term."
Counsel for defendant raises the following arguments in defendant's brief on appeal:
POINT I THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF NUMEROUS STATEMENTS MADE BY TWO STATE'S WITNESSES CONNECTING HIM WITH PRIOR CRIMINAL CONDUCT. (PARTIAL[LY] RAISED BELOW).
POINT II THE JURY'S VERDICT FINDING THE DEFENDANT NOT GUILTY OF COUNTS I, II, AND III AS WELL AS THE VARIOUS LESSER INCLUDED OFFENSES EXCEPT FOR ASSAULT WITH AN AUTOMOBILE AND SIMPLE ASSAULT NECESSARILY PRECLUDED A CONVICTION ON COUNT IV, RENDERING ITS GUILTY VERDICT ILLOGICAL, INCONSISTENT AND FATALLY DEFICIENT AS A RESULT. (NOT RAISED BELOW).
POINT III THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING A FOUR YEAR CUSTODIAL TERM ...