On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-05-0663.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant, John E. Nadzak, appeals his robbery and aggravated assault convictions and the sentence imposed arising out of an attempted robbery of his former employer and the assault of two employees during the course of the robbery. We affirm the convictions and remand to the trial court for the entry of an amended judgment merging the aggravated assault convictions and the weapons convictions with the robbery convictions.
A grand jury indicted defendant on two counts of robbery, N.J.S.A. 2C:15-1; three counts of possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d); three counts of possession of a weapon, N.J.S.A. 2C:39-3(e); and two counts each of three types of aggravated assault under N.J.S.A. 2C:12-1(b)(1), N.J.S.A. 2C:12-1(b)(2), and N.J.S.A. 2C:12-1(b)(3).*fn1
The evidence presented at trial, was as follows. During the summer of 2005, defendant worked at the Quick Chek (the store) in Woodbridge but was terminated in August after being implicated in an inside theft of merchandise. On February 8, 2006, around 5:30 a.m., defendant entered the store where two employees, Robin Depuy (Depuy), the store's assistant manager, and William Voelkel (Voelkel) were on duty. Another employee, Darlene Scott (Scott), was scheduled to work the shift but called out sick and Depuy took her place. When defendant entered the store, he proceeded to strike Depuy on the head with a hammer three times. Depuy initially fell backwards and then wrestled defendant to the ground. Depuy told Voelkel to call 9-1-1 and removed a covering that defendant had taped over his face. Defendant then tried to stab Depuy with a knife that he had taped to his hand. Voelkel was able to grab the knife from defendant, injuring his hand in the process.
During the scuffle, Depuy asked defendant what he was doing, and defendant answered, "I was coming to the store to rob the place." Defendant also told Depuy that he thought Scott, an older female employee, would be working that night, and not Depuy. Defendant begged Depuy not to call the authorities and offered to "[t]ake care of your problems. You know, I have money." The entire incident was caught on the store security camera, which was admitted into evidence at trial. Defendant was arrested and a knife was found in his possession.
Depuy and Voelkel were taken to John F. Kennedy Medical Center in Edison and treated. Depuy received five staples to close the wound on his head and later lost vision in his left eye. Voelkel experienced migraine headaches, uncontrollable urination and defecation as well as vertigo.
At trial, the defense contended that defendant could not have had the specific intent necessary to commit first-degree robbery because he was intoxicated. Additionally, the defense argued defendant lacked the requisite mens rea to commit the offenses because he had been diagnosed with bipolar disorder as a teenager. In support of this theory, the defense presented expert testimony from a psychologist, Dr. Donald Franklin, who opined that defendant "appeared to be experiencing a paranoid delusion" at the time of the incident and that this delusion "impaired his ability to act in a knowing and purposeful manner." Under cross-examination, Dr. Franklin was questioned about defendant's criminal history. Through its own expert psychologist, Dr. Louis Schlesinger, the State attempted to rebut Dr. Franklin's opinions. Dr. Schlesinger expressed the opinion that defendant was a malingerer or, alternatively, exaggerating the symptoms of actual disorders. He agreed that defendant suffered from depression, was polysubstance dependent, and had a "severe personality disorder, with immature, impulsive, anti-social traits." Nonetheless, he was of the view that defendant was fully capable of planning a robbery.
The jury convicted defendant of all the remaining charges contained in the indictment. Defendant moved for a new trial on the grounds that the evidence of his prior bad acts was improperly admitted and that the verdict was against the weight of the evidence. The trial court denied the motion. At sentencing, the court merged Count Eleven (fourth-degree aggravated assault) and Count Thirteen (third-degree aggravated assault), merged Count Twelve (third-degree aggravated assault) and Count Fourteen (fourth-degree aggravated assault), and imposed two concurrent thirteen-year sentences for the robbery convictions, concurrent five-year sentences for the weapons convictions, and concurrent eight-year sentences for the aggravated assault convictions. The present appeal followed.
On appeal defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN PERMITTING THE JURY TO HEAR SO MUCH "OTHER ACT" AND BAD CHARACTER EVIDENCE INVOLVING PRIOR ACCUSATIONS OF THEFT, DEFENDANT'S CRIMINAL HISTORY, DRUG ABUSE, AND SUGGESTED UNEMPLOYMENT AND FAILURE TO PAY BILLS.
THE COURT'S JURY INSTRUCTIONS LIMITING THE ADMISSIBILITY OF THE OTHER CRIMES AND BAD CHARACTER ...