On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-01-0012.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Coleman, Lihotz, and J. N. Harris.
On January 9, 2007, a Burlington County Grand Jury returned an indictment charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(l) (count one) and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count two). Defendant was tried over a five-day period before Judge John A. Almeida and a jury on these charges. The jury convicted defendant on count one of the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and acquitted him on count two. On May 15, 2009, Judge Almeida sentenced defendant to five years incarceration and imposed appropriate fees and penalties.
Defendant appeals from his conviction claiming that several due process violations, trial errors, and sentencing miscues cumulatively resulted in reversible error. He claims that he was the victim, not the aggressor, and that his conviction is unjust. He demands either a new trial or resentencing. Following our review, we are unable to agree that defendant's rights were violated or that there were any other unduly prejudicial errors that would warrant reversal. Accordingly, we affirm.
On June 10, 2006, defendant and his then-girlfriend Kathleen Cotton arrived at his parents' home slightly intoxicated following a family wedding. They then engaged in an intense argument regarding the use of drugs.
Defendant spit on Cotton, slammed her into a wall, and choked her. As the physical altercation escalated and became increasingly more violent, defendant's mother entered the room, and defendant ordered her to call the police because Cotton was physically attacking him. As Cotton attempted to collect her belongings and leave, defendant threw her across the room and she lost consciousness. When Cotton woke up on the floor, she was partially undressed and defendant "was stomping, stomping on [her] side."
Defendant then left the room, grabbed a shotgun, and after arguing with his father, departed from the home. This gave Cotton an opportunity to once again gather her things, go downstairs, and attempt to find someone to pick her up from the Neiderman home. Unable to find someone, Cotton finally convinced defendant's father to drive her to a friend's residence in Pennsylvania. Defendant reappeared and threatened his father, verbally assaulted the victim, and according to Cotton, engaged in "ripping and shredding [Cotton's] clothes apart, throwing them around the yard so [she] couldn't pick them up and... screaming at [Cotton] that [she] wasn't leaving there alive."
This commotion caught the attention of a neighbor, Jody Dickson, who was caring for Cotton's children for the evening.
Dickson confronted defendant in order to have him quiet down. Soon afterwards, Dickson's husband offered to drive Cotton and her children away from the scene, and Cotton was taken to a friend's house in Pennsylvania.
On June 11, 2006, Cotton was transported to a small community hospital in Pennsylvania, Hazleton General Hospital, for evaluation, as she was stumbling, falling, and having trouble speaking. Her bruises were worsening, and she was having trouble breathing due to the defendant choking her during the assault.
The next day, Cotton was transferred to Lehigh Hospital, a major trauma center, for further evaluation. She was discharged approximately twenty-four hours later after her symptoms apparently subsided. Several days later, however, Cotton was re-admitted to Lehigh Hospital, where she remained for five days, during which she complained of and was evaluated for dizziness, headaches, speech difficulties, blurred vision, and vomiting.
On June 11, 2006, Sergeant Brian Pesce, a detective with the Bordentown Police Department, was informed of the incident reported by Cotton. He drove to the hospital on June 12, 2006, spoke with Cotton about the details of the assault, and personally observed and took photographs of her bruising and related injuries. On June 14, 2006, Sergeant Pesce drove to defendant's house in an attempt to find the shotgun allegedly on defendant's person during the assault, but was unable to locate it, as defendant had taken it to his friend Dean Lenox's house.
In addition, on June 12, 2006, Bordentown Township Patrol Officer Salvatore Guido, who was on patrol at the time, went to defendant's home in Bordentown to question him about the alleged assault. While defendant acknowledged he had been involved in a physical altercation, he did not have any visible injuries, and did not want to file a complaint against Cotton, the person he considered the true aggressor.
On June 14, 2006, Officer Pesce returned to defendant's home and after placing him under arrest, received permission from defendant's mother to search defendant's room, but was unable to locate the shotgun. Later, Officer Guido went to Lenox's house and ultimately took possession of the shotgun.
Bordentown Police Officer Nathan Roohr testified that he was the first responder to the Neiderman home on the night in question after receiving a complaint of a domestic dispute at that address. Indeed, it appears that defendant had placed the 9-1-1 call. In a second 9-1-1 call he stated, "I mean I definitely want to press charges. I'm all banged up here."
Officer Roohr testified that after informing the Neidermans that he needed to speak to their son, defendant shouted that he was not going to talk to the officer, and no additional comments were made at that time. According to defendant, the prosecutor specifically argued in his summation that the defendant's decision to remain silent about the events both pre- and post-arrest improperly suggested that defendant had a guilty state of mind.
The State also presented expert testimony from Dr. Ian Hood, M.D., who provided his medical opinion regarding the injuries Cotton attributed to the attack, specifically the concussion she sustained and its long-term effects. A neurologist, Dr. Martin Gizzi, M.D., who also personally reviewed Cotton's medical records, was presented as an expert witness by the defense, whose conclusions were in conflict with those of the State's witness regarding the severity of Cotton's injuries.
Dr. Hood had been engaged to testify in the place of the State's prior expert, Dr. Chase Blanchard, M.D. At the time of trial, Dr. Blanchard was no longer employed by the Burlington County Medical Examiner's office and the prosecutor sought to substitute Dr. Hood rather than try to secure Dr. Blanchard's voluntary attendance from out of state. During a pretrial conference defendant challenged the State's substitution because Dr. Hood had not prepared a formal report after his review of the medical records. The court explained that while "[t]here is no prohibition from Dr. Hood testifying if Dr. Hood reviewed the records that Dr. Blanchard reviewed[,]... the problem is [that ...