On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1113.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2010 Decided
Before Judges Carchman and Waugh.
Defendant Rafael G. Pichardo appeals his conviction for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (Count I); third-degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1(b)(5) (Count III); fourth- degree aggravated assault by throwing bodily fluid at certain law enforcement officers, contrary to N.J.S.A. 2C:12-13 (Counts IV and VI); third-degree resisting arrest by use or threat of force, N.J.S.A. 2C:29-2(a) (Count VII); fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1 (Count
VIII); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (Count IX).*fn1 He also appeals from the aggregate sentence of fifteen years of incarceration. We affirm the conviction, but remand for resentencing with respect to all counts, except Count I, and for reconsideration of a consecutive sentence on Count
We discern the followings facts and procedural history from the record.
On February 11, 2007, Officer Dean Dooley of the Atlantic City Police Department and six other officers were assigned to a security detail at the Casbah nightclub at the Taj Mahal casino. Pichardo and his wife entered the Casbah between 12:30 and 1:00 a.m. on February 12. At approximately 5:00 a.m., Dooley observed Pichardo slam a stanchion to the ground. Dooley approached him and asked him to pick up the stanchion. Pichardo did not do so. His wife then approached and picked it up.
Pichardo walked to the dance floor, but continued looking at the officers, because he felt that he had been disrespected. He also gestured towards them with his middle finger. His wife attempted to calm and restrain him. Dooley approached Pichardo, took his arm, and attempted to escort him out of the club.
According to Pichardo, he was struck in the head and blacked out, regaining consciousness only after he had been handcuffed. He testified at trial that he was unable to remember the intervening events.
Dooley testified that Pichardo escaped his grasp, after which Pichardo punched Sergeant Christopher Applegate, who was assisting him in trying to escort Pichardo out of the club. Applegate was eventually knocked to the ground, striking his head on a piece of furniture as he fell. A struggle among Pichardo, Dooley, and Applegate followed, as the police officers attempted to subdue Pichardo.
Dooley attempted to handcuff Pichardo, but was unable to force his hand behind his back. While Dooley was grasping Pichardo's wrist, Pichardo pulled his wrist towards his head and bit Dooley's finger. Dooley punched Pichardo in the face several times in an attempt to free his finger. Although Dooley eventually freed his hand, the finger had been severed.*fn2
Applegate continued to struggle with Pichardo. Believing that Dooley's finger was in his mouth, Applegate drew a collapsible baton and struck Pichardo in his back, shoulder, and head to force him to spit the finger out. Pichardo began spitting at Applegate, and continued spitting throughout the confrontation.
Applegate and another police officer eventually handcuffed Pichardo and removed him from the casino. Pichardo was taken to the hospital, where Applegate observed Pichardo spit at Officer Patrick Yarrow and his partner.
Pichardo was tried before a jury in April 2009. On May 1, the jury found Pichardo guilty on seven counts of the nine-count indictment. He was acquitted on the remaining two counts, throwing bodily fluids at Dooley and aggravated assault of Yarrow.
In July 2009, the trial judge granted Pichardo's application for substitution of new defense counsel. On August 27, 2009, Pichardo made a motion for a new trial. The trial judge ...