On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-06-0495 and 08-06-0496.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Baxter.
Following a trial by jury, defendant Malcolm J. Wade appeals from his March 31, 2009 conviction under Indictment No. 08-06-0495 on a charge of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one). Shortly after the jury returned its guilty verdict on that indictment, defendant entered a negotiated plea of guilty to fourth degree certain persons not to possess weapons, N.J.S.A. 2C:39-7, under Indictment No. 08-06-0496. Both indictments pertained to defendant's possession, or use, of a knife during a single incident on February 29, 2008.
At the time of sentencing, on Indictment No. 08-06-0495, the judge imposed an eight-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2.*fn1 On Indictment No. 08-06-0496, the judge imposed a concurrent eighteen-month term of imprisonment.
On appeal, defendant raises the following claims through assigned counsel:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE BECAUSE THE STATE FAILED TO PROVE ALL ELEMENTS OF THE CRIMES OF AGGRAVATED ASSAULT, PURSUANT TO N.J.S.A. 2C:12-1; POSSESSION OF A WEAPON FOR [AN] UNLAWFUL PURPOSE, PURSUANT TO N.J.S.A. 2C:39-4(d); AND UNLAWFUL POSSESSION OF A WEAPON, PURSUANT TO N.J.S.A. 2C:39-5(d).
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL NOTWITHSTANDING THE VERDICT AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF [THE] EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE TO DEFENDANT.
A. The Jury Verdict Was Against The Weight of Evidence.
B. The Jury Verdict Was Inconsistent.
III. THE SENTENCE IMPOSED [ON] DEFENDANT'S CONVICTION OF AGGRAVATED ASSAULT, POSSESSION OF A WEAPON FOR [AN] UNLAWFUL PURPOSE, UNLAWFUL POSSESSION OF A WEAPON AND CERTAIN PERSONS NOT TO HAVE WEAPONS WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
In addition, defendant has submitted a supplemental pro se brief in which he argues:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROPERLY AND ACCURATELY INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES.
We reject these contentions and affirm defendant's convictions and sentence.
The following facts were presented at trial. On the night of February 29, 2008, Shakee Harris finished work and drove to the Plainfield Police Department, which was the prearranged location for the transfer of defendant's and Harris's young daughter for purposes of visitation. Defendant and Harris argued over whether defendant would take the child with him for visitation that weekend. Ultimately, Harris and the child left the police station.
Harris then drove to her aunt's house, where she picked up Stephan Harry, her boyfriend of four years. While Harris was driving, with Harry in the passenger seat, and her daughter in the back, she observed a vehicle following them. When she stopped at a traffic light at the corner of Richmond Avenue and East Second Street in Plainfield, defendant jumped out of the car that had been following them, and pulled open the passenger-side door of Harris's car. Harry immediately stepped out of the car, both for his own protection and for the sake of Harris and the child. After trying unsuccessfully to grab defendant's hands, he and defendant began "throwing punches" at each other. Defendant continued to attack Harry, striking him on his left side. While Harry was attempting to defend himself, he heard defendant tell another male, whom Harry did not know, to hit him. Harry described what happened next:
And we [were] both throwing punches, tussling, and [defendant] he -- he said hit -- this mother-f***er and somebody came and struck me on my left side. Then I looked, they backed off, we still tussling. Then he said hit this mother-f***er again. Then the guy came, struck me again on my left side. He backed off. Then all -- I felt as though I was holding my own.
All of a sudden I lost all energy and I went back and then [defendant] was like, yeah, mother-f***er, then he struck me on my head. Then I pushed off. I was leaning against a light pole and I pushed off. And then [defendant] was like hit this mother-f***er again. Then I started trying to pull away from [defendant] and get out of harm's way of the other guy.
Harry explained that when he fell back against the pole, "it felt like everything left from [him], like [he] didn't have . . . nothing left." While Harry was leaning against the light pole, defendant struck him in his forehead. When asked to describe the interaction between defendant and the unidentified male, Harry explained that the unidentified male acted "like he was confused" and "didn't want anything to do with anything," but "only reacted when [defendant] called him." According to Harry, each time defendant called to the other male, "he would strike me ...