On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-11-2659-E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Espinosa and Skillman.
Defendant was found guilty by a jury of aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7). The trial judge sentenced defendant to a four-year term of imprisonment.
On appeal, defendant presents the following arguments:
I. THE TRIAL JUDGE IMPROPERLY SENTENCED THE DEFENDANT TO A TERM OF STATE PRISON FOR HIS FIRST INDICTABLE CONVICTION.
II. THE TRIAL JUDGE FAILED TO READ BACK THE ENTIRE RESPONSE OF A WITNESS PURSUANT TO A QUESTION FROM THE JURY.
Defendant's arguments are clearly without merit. R. 2:11-3(e)(2). Nevertheless, we make the following brief comments regarding those arguments.
The presumption against imposition of a sentence of imprisonment upon a defendant convicted of an offense other than one of the first or second degree only applies if the defendant "has not previously been convicted of an offense," N.J.S.A. 2C:44-1(e), and "offense" under the Code is defined as "a crime, a disorderly persons offense or a petty disorderly persons offense." N.J.S.A. 2C:1-14(k). Consequently, there is no presumption against imposition of a sentence of imprisonment in favor of a defendant who has been previously convicted of a disorderly persons offense. State v. Battle, 256 N.J. Super. 268, 285 (App. Div. 1992). Defendant had been previously convicted of the disorderly persons offense of simple assault, in violation of N.J.S.A. 2C:12-1(a), and the petty disorderly persons offense of violent behavior, in violation of N.J.S.A. 2C:33-2(a)(1), before committing the aggravated assault that is the subject of this appeal. Therefore, he was not entitled to a presumption of a non-custodial sentence under N.J.S.A. 2C:44-1(e). Moreover, even if that presumption had been operative, the trial judge could have found it to have been overcome based on defendant's history of violent offenses both as a juvenile and as an adult and the seriousness of the harm inflicted upon the victim (a broken jaw). The judge's statement of aggravating and mitigating sentencing factors provided adequate justification for the four-year term of imprisonment imposed upon defendant.
"[T]he reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court." State v. Wilson, 165 N.J. 657, 660 (2000) (quoting State v. Wolf, 44 N.J. 176, 185 (1965)). "[W]here a request is clearly circumscribed, the trial court has no obligation to compel jurors to hear testimony they have not asked for or to continue a readback after they have expressly indicated that they have heard enough." Id. at 661.
In this case, the jury only asked for a read back of a portion of Officer Lugo's testimony. The judge had the court reporter read back that part of Officer Lugo's testimony, and when she was done, one of the jurors said, "That's it." The judge then said, "That seems to satisfy the jurors[,]" and directed the jury to resume deliberations. Defense counsel did not request the judge to have the reporter read back any additional testimony. In the absence of such a request, we see no basis for concluding that the judge's handling of the jury's request for a read back constituted plain error.