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State v. Neiderman


September 30, 2010


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-01-0012.

Per curiam.


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 defense counsel] doesn't know what Dr. Hood is going to say. He has nothing more than [the prosecutor's] representation that Dr. Hood... is going to adopt Blanchard's report."

The court conducted a N.J.R.E. 104 hearing to determine whether it would permit the witness to testify. At the conclusion of the hearing, the court determined to permit Dr. Hood to testify as to his findings, which it found closely aligned with Dr. Blanchard's written opinion and which "is clearly not a net opinion."


Defendant argues that the prosecution intentionally asked a series of questions of Officer Roohr, improperly eliciting the fact that defendant had remained silent in the face of police interrogation prior to his arrest. Defendant further contends that the prosecutor then used this evidence on summation as substantive evidence showing a guilty state of mind.

Defense counsel did not object to any of the complained of statements made at trial. Consequently, under the plain error standard, the court "must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 337 (1971).

Moreover, to determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The prosecution's obligation to promote substantial justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987)(internal citation omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). Indeed, the Supreme Court has recognized that criminal trials often create a "'charged atmosphere... [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Id. at 320, 323 (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)) (noting that the absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial).

We also must take account of defendant's due process arguments. The Fifth Amendment to the United States Constitution states, "[n]o person shall... be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. Similarly, the New Jersey "'privilege against self-incrimination is deeply rooted in the State's common law and codified in both statute and an evidence rule.' Both N.J.S.A. 2A:84A-19 and N.J.R.E. 503 provide that 'every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate.'" State v. Brown, 190 N.J. 144, 153 (2007) (internal citations omitted). However, [t]he United States Supreme Court has approved the admission of such evidence [in situations where defendant testifies and is claiming self-defense]. Jenkins v. Anderson, 447 U.S. 231, 235-38, 100 S.Ct. 2124, 2127-29, 65 L.Ed. 2d 86, 92-95 (1980). In Jenkins,... [o]n cross-examination, the prosecutor attempted to impeach the defendant's credibility by questioning why the defendant did not speak out immediately if he had acted in self-defense. Id. at 235, 100 S.Ct. at 2127, 65 L.Ed. 2d at 92. Following the defendant's conviction, the defendant appealed, asserting that his right to remain silent was violated. Id. at 234, 100 S.Ct. at 2127, 65 L.Ed. 2d at 92. The Court held that the "Fifth Amendment is not violated by the use of pre[-]arrest silence to impeach a criminal defendant's credibility." Id. at 238, 100 S.Ct. at 2129, 65 L.Ed. 2d at 94-95. The Court reasoned that because "impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial," there is no constitutional violation. Id. at 238, 100 S.Ct. at 2129, 65 L.Ed. 2d at 94. Nevertheless, the Court noted that state courts need not follow its decision to allow impeachment through the use of pre-arrest silence and that "[e]ach jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative then [sic] prejudicial." Id. at 240, 100 S.Ct. at 2130, 65 L.Ed. 2d at 96. [Brown, supra, 190 N.J. at 154-55.]

Defendant's pre-arrest silence may be of evidentiary significance, especially when he contends that he was acting in self-defense. Defendant testified the day after Patrolman Roohr, explaining that when the officer showed up at his parents' house, he did not want to speak with Roohr; he was merely satisfied that Cotton was out of his house, and did not see any further reason to talk to the police at that time.

On cross-examination, the prosecutor was attempting to impeach credibility, making numerous references to defendant's allegedly partially true statements to the police, or leaving out important pieces of information about the attack. This exchange concluded with defendant saying for the first time that his actions against Cotton were in self-defense.

In summation, the prosecutor made reference to the 9-1-1 tape that was played for the jury, in which defendant called Cotton an unfit parent, that she was guilty of underage drinking, that she had several warrants out for her arrest, and that he had sustained several physical injuries during the alleged attack. The State sought to counter defendant's claim that he had been assaulted by demonstrating his starkly contradictory stance by refusing to speak to police shortly after they arrived at the Neiderman home.

The prosecutor's argument, when read in its entirety, does not suggest pre-arrest silence as a guilty state of mind, but merely underscores the totality of defendant's actions following the incident and the inconsistencies between his statements in the 9-1-1 report and his actions afterward. We do not believe, as defendant suggests, that the stray comment, "the 9-1-1 tape is further consciousness of defendant's own guilt" means "the prosecutor was arguing that pre-arrest silence was also substantive evidence of a consciousness of guilt." More importantly, we are satisfied that any prejudicial effect of such a brief comment upon the jury was harmless.

There was no undue prejudice arising from that discrete portion of the State's summation, and, more importantly, it is impossible to detect prosecutorial misconduct when considering the summation as a whole. See State v. Ingram, 196 N.J. 23, 43 (2008) (evaluating the propriety of a prosecutor's summation when "[t]aken as a whole").

Defendant also contends that the prosecutor improperly commented upon his alleged post-arrest silence, specifically for the defendant's failure to inform Sergeant Pesce that he had a shotgun. Defendant correctly points out that when a prosecutor makes reference to a post-arrest Fifth Amendment right to remain silent, the court is generally obliged to give the jury a limiting instruction explaining that such evidence may only be considered to impeach the defendant, not to prove defendant's guilty state of mind. State v. Elkwisni, 190 N.J. 169, 182 (2007). However, if a defendant receives Miranda*fn1 warnings and elects not to give a statement, the State may not impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story at the time of his arrest.... The State is not prohibited from using defendant's post-arrest silence when defendant testifies to an exculpatory version of events and claims to have told the police the same version upon arrest because the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest. [Id. at 177 (internal citations and quotations omitted).]

Here, defendant did not exercise his right to remain silent. He freely spoke with police detectives after his arrest about the events on the night in question, but purposely left out details such as his possession and concealment of the shotgun. At trial, he admitted that he originally lied to Sergeant Pesce regarding his ownership of the weapon.

Additionally, pursuant to N.J.R.E. 803(b)(1), a statement may be offered against a party that is the party's own statement, made either in an individual or in a representative capacity. The statements or omissions made by defendant were admissible, and as we have already noted, where a question "was not raised in the trial court, [the appellate court] must apply the plain error rule and not reverse unless the claimed error is capable of producing an unjust result." State v. Boyer, 221 N.J. Super. 387, 401 (App. Div. 1987) (citing R. 2:10-2). That circumstance does not exist in this case.

The standard for determining whether a constitutional error warrants reversal is one where the court must be convinced "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." State v. Scherzer, 301 N.J. Super. 363, 454 (App. Div.), certif. denied, 151 N.J. 466 (1997) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710 (1967)). Here, the identified errors were neither harmful nor unduly prejudicial, and were wholly incapable of materially affecting the outcome of the trial.

Defendant next argues that his due process rights pursuant to both the United States and New Jersey Constitutions were violated by the absence of an instruction to the jury on the defense of others. Defendant contends that because his mother was in close proximity to the fray, there was a clear factual basis in the record to support such a theory, and therefore the trial court had an obligation to provide the jury with clear and accurate guidance on that defense. We do not agree with defendant's broad-stroke proposition.

Our courts have recognized that "[a]n essential ingredient of a fair trial is that a jury receives adequate and understandable instructions. Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). In assessing the propriety of a jury charge, an appellate court should examine the entire charge to see whether it was ambiguous or whether it misinformed the jury of the law. See State v. R.B., 183 N.J. 308, 325 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960).

In considering a jury charge, plain error is legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.

[State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).]

Where a defendant does not object to the jury charge, we will reverse only if the failure to charge the jury was, again, "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice. The possibility must be "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Noble, 398 N.J. Super. 574, 596 (App. Div.), certif. denied, 195 N.J. 522 (2008) (quoting Macon, supra, 57 N.J. at 336).

Self-defense and defense of others are outlined in N.J.S.A. 2C:3-5, which provides that the use of force upon or toward the person of another is justifiable to protect a third person when:

(1) The actor would be justified under [N.J.S.A.] 2C:3-4 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and

(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.

Additionally, our courts have explained that "[t]he defense is valid if the defendant reasonably believed both that the person he sought to aid was unlawfully attacked and that the force used was necessary to protect that person from the attack." State v. Bryant, 288 N.J. Super. 27, 35 (App. Div. 1996) (citing State v. Martinez, 229 N.J. Super. 593, 600 (App. Div. 1989); State v. Fair, 45 N.J. 77, 92-93 (1965)). "The reasonableness of the defendant's belief is judged from the perspective of a reasonable person in defendant's position under the circumstances existing at the time he intervened." Ibid.; see State v. Holmes, 208 N.J. Super. 480, 486-88 (App. Div. 1986).

While defendant arguably was permitted to raise such a defense during trial and during his testimony recounting the events in question, he failed to do so. This defense was not raised below, and the defendant did not object to the jury charge at the time it was given and before the jurors retired to deliberate.

Defendant's mother testified that during the physical altercation between Cotton and her son, Cotton came toward her, shoving her, and causing her to hit her head; all of this occurred because Cotton was attempting to prevent her from calling the police. While defendant himself testified to the same series of events, when asked by the prosecutor whether his actions that night were for self-protection, defendant answered affirmatively, but at no point in time was it contended that his actions were to protect his mother from attack as well. Nor was the theory of defense of others mentioned during the closing statements of defense counsel.

The jury charge as a whole outlined the elements of the crime, explained the elements of the self-defense theory, and explained the burden of proof each party had to sustain to prevail. The failure to include a defense of others instruction in the jury charge is not likely to have changed the outcome of the case. We agree with the State's succinct argument that "[i]t defies logic that the jury, which rejected the theory of self-defense, would have acquitted defendant based on defense of others."

Defendant also argues that his due process rights were violated by the trial court's erroneous, confusing, incomplete, and prejudicial jury instructions on the law of self-defense. Defendant further contends that the jury instructions compelled the jurors to convict him once they determined that the State sustained its burden of proof, instead of informing the panel that it must then consider the elements of self-defense if the State proved the elements of the crime beyond a reasonable doubt. As defendant did not object at the time the instructions were issued, they must be reviewed under the plain error standard. R. 2:10-2.

We examine the jury charge as a whole to determine whether its overall effect had the capacity to engender an unjust result. State v. Wilbely, 63 N.J. 420, 422 (1973); accord State v. Adams, 194 N.J. 186, 207 (2008); State v. Gartland, 149 N.J. 456, 473 (1997). The court will not read just the portion alleged as error. State v. Docaj, 407 N.J. Super. 352, 363 (App. Div.), certif. denied, 200 N.J. 370 (2009). No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. State v. Thompson, 59 N.J. 396, 411 (1971).

We recognize that "[e]rroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions." State v. Jordan, 147 N.J. 409, 422 (1997); see also State v. Jenkins, 178 N.J. 347, 360 (2004). "[E]rrors in the charge to the jury on material issues are viewed as 'poor candidates for rehabilitation under the harmless error philosophy.'" State v. Garretson, 313 N.J. Super. 348, 355 (App. Div.) (internal quotations omitted), certif. denied, 156 N.J. 428 (1998). That is, the plain error standard requires reversal only if the error was "clearly capable of producing an unjust result." State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.) (citing R. 2:10-2), certif. denied, 188 N.J. 489 (2006).

Our review of the jury charge under the totality of the circumstances convinces us that Judge Almeida properly instructed the jury on the elements of the crime, stated what the State must prove beyond a reasonable doubt in order for the jury to find defendant guilty, and fairly explained the law of self-defense. The court detailed the justification of self-defense to the jury, outlining the elements that must be shown, as well as the levels of force that are permitted in varying circumstances, explaining,

[t]he State has the burden to prove... beyond a reasonable doubt that the defense of self-defense is untrue. This defense only applies if all the conditions or elements previously described exist. The defense must be rejected if the State disproves any of the conditions beyond a reasonable doubt. If the State does not satisfy its burden, and you do have a reasonable doubt, then it must be resolved in favor of the defendant and you must allow the claim of self-defense and acquit the defendant.

Defendant received all process that he was due. We conclude that the jury instructions, read as a totality and in context, were proper and do not require a reversal of defendant's conviction.

Defendant also contends that the jury instructions allegedly allowed jurors to decide for themselves what acts constitute unlawful force, in order to make a determination as to whether defendant was justified in using force as a means of self-defense. We disagree.

Judge Almeida explained to the jury that "[u]nlawful force is defined as force used against a person without the person's consent, in such a way that the action would be a civil wrong or criminal offense." When taken as a whole, the court's explanation did not leave the jurors adrift to employ their own devices to determine what constitutes "unlawful force" in this situation. The elements of assault were explained, and the jurors heard full testimony regarding the nature of the force that defendant inflicted upon Cotton.

The defendant also contends that the trial court erred when it failed to instruct the jury that self-defense may be used to consider whether the State proved each element of the underlying offense beyond a reasonable doubt. Defendant explains that "when self-defense evidence is insufficient to establish justification but is relevant to the mens rea element of the offense, the trial court should specifically instruct the jurors that they should consider self-defense evidence on the issue of defendant's state of mind."

As the State points out, defendant's argument is similar to that of imperfect self-defense. Such a defense exists when there is an honest and reasonable belief in the necessity to use force. State v. Bowens, 108 N.J. 622, 630 (1987); State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997). Imperfect self-defense means "an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable." State v. Bowens, supra, 108 N.J. at 628.

Imperfect self-defense is not a recognized defense in New Jersey. State v. Branch, 155 N.J. 317, 329 (1998); State v. Bowens, supra, 108 N.J. at 641. However, the imperfect self-defense theory can be relevant to a defendant's state of mind. Bowens, supra, 108 N.J. at 628. [State v. Tierney, 356 N.J. Super. 468, 483 (App. Div.) certif. denied, 176 N.J. 72 (2003).]

Therefore, our courts have recognized that while there is no direct jury charge on this defense, there may be facts that relate to the defendant's state of mind, and which may warrant a charge on a lesser-included offense. Bowens, supra, 108 N.J. at 640-41.

In this case, Judge Almeida presented jury instructions on second-degree aggravated assault, its lesser-included offense, as well as on the law of self-defense. The absence of an instruction on imperfect self-defense was not erroneous; the jury instructions read as a whole were more than adequate to apprise jurors fairly about the contours of the case and their responsibilities to sift through the evidence and reach a just verdict.

Defendant complains further about the trial court's decision to allow Dr. Hood to testify instead of Dr. Blanchard. Defendant argues that the State violated its discovery obligations by failing to produce the original expert, Dr. Blanchard, and alternatively by failing to produce a written report of Dr. Hood. We do not find merit in defendant's contentions.

Rule 3:13-3 outlines the pre- and post-indictment discovery requirements for criminal matters. It specifically requires the State to produce to the defense the "names and address of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." R. 3:13-3(d)(5). In this case, although Dr. Blanchard was properly identified to the defense, Dr. Hood's participation as the State's expert -- albeit derivatively relying upon Dr. Blanchard's prior work product -- was late coming. Defendant asserts that this belated tactic prejudiced the defense.

In State v. Labrutto, 114 N.J. 187, 204-06 (1989), the Court explained that in determining whether the State's expert would be permitted to testify, it may apply the standard utilized in civil cases. However, it must first determine whether the defendant will be prejudiced, and additionally the court must examine the State's potential motives to mislead the defense or burden its adversary with the element of surprise. Ibid. Moreover, the "State's failure to comply with the requirement of this provision will not preclude the testimony if defendant is not thereby prejudiced." Pressler, Current N.J. Court Rules, comment 3.2.9 on R. 3:13-3 (2010); see State v. Toro, 229 N.J. Super. 215, 222-24 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989).

As the civil and criminal standards are similar, "[i]t is well settled that a trial judge has the discretion to preclude expert testimony on a subject not covered in the written reports furnished in discovery." Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990); see State v. Scher, 278 N.J. Super. 249, 272-73 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995). Such a decision to exclude or permit the introduction of evidence will only be overturned by an appellate court if a "manifest denial of justice" would result. Ratner, supra, 241 N.J. Super. at 202 (citing State v. Carter, 91 N.J. 86, 106 (1982)).

However, R. 3:13-3 is clear that a written report is not required as long as "a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion" is produced. R. 3:13-3(d)(5).

Additionally, defendant was afforded a Rule 104 hearing, in which Judge Almeida considered the testimony that Dr. Hood was prepared to give at trial, which revealed that his medical opinion was substantially similar to that contained in Dr. Blanchard's written report. Defendant also had an expert witness prepared to rebut the conclusions of Drs. Blanchard and Hood; there was no unfair prejudice, surprise, or impact on the outcome of trial by the court permitting Dr. Hood to testify.

To the extent that we have not commented upon defendant's remaining non-sentencing arguments, including his contention that impermissible hearsay from Sergeant Pesce bolstered the State's case, we find them all without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Lastly, defendant argues that the sentence of five years was excessive and he should only have been subjected to the minimum three years incarceration. This alleged sentencing miscalculation is due, according to defendant, to the trial court's improper balancing of aggravating and mitigating factors. Moreover, defendant also contends that the judge made inappropriate findings of fact before imposing the sentence.

Judge Almeida found aggravating factors (3), (6) and (9)*fn2 to be present, and determined that no mitigating factors applied.

After reviewing defendant's pre-sentence report, the court found that the "inescapable conclusion... is that [defendant] does have a problem with women. His problem is one of control, it's one of domination and it's one of physical abuse and whether the motivation for that is caused by drugs or alcohol or simply caused by a character quirk, it's a character quirk that has to be resolved by punishment and the punishment in this case should be the highest sentence permissible by law."

While the court found no mitigating factors to be present, N.J.S.A. 2C:44-1(b)(1) to -1(b)(13), defendant argues that factors (4) and (11) are applicable, relating to his conviction of a lesser-included offense and the excessive hardship on his family and children, respectively. Factor (4) indicates that "there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense."

N.J.S.A. 2C:44-1(b)(4). Despite defendant's arguments to the contrary, even though the jury convicted defendant of the lesser-included offense of aggravated assault, this does not necessarily mean that he had significant grounds on which to establish justification. As the State correctly points out, "the verdict could easily suggest that the jury found [the victim's] injuries, while serious, [to] not rise to the level needed to sustain a conviction for second-degree aggravated assault, as she was not permanently deprived a bodily function or one of her five senses."

With respect to mitigating factor (11), N.J.S.A. 2C:44-1(b)(11), it is clear from the record that there will not be excessive hardship to defendant's dependents if he is incarcerated. As Judge Almeida noted, "[t]he relationship that you have with several of your children is virtually nonexistent. You may have a relationship with your current child. I'm not aware of that but I don't find that there is a serious or severe harm to your family by your being incarcerated."

Defendant argues that the trial court improperly made findings of fact regarding the aggravating and mitigating factors that were applicable to his sentence, claiming that "[t]here was no basis in the jury verdict to support the imposition of this enhanced sentence, as required by law." Because Judge Almeida sentenced defendant for this third-degree conviction within the correct range of three to five years permitted by law, N.J.S.A. 2C:43-6(a)(3), a jury's fact-finding was unnecessary for the imposition of this ordinary sentence. We conclude that the trial court properly "adhered to the sentencing principles set forth in the Code [of Criminal Justice] and defined in our case law." State v. Bieniek, 200 N.J. 601, 612 (2010). Accordingly, we find no reason to interfere with the sentence imposed.


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