On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-01-0076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Fasciale.
Defendant appeals from his conviction for second-degree possession of a weapon for an unlawful purpose, second-degree endangering the welfare of a child, and a lesser-included offense of simple assault. The primary issue is whether the inconsistent verdict on defendant's weapons conviction and acquittal of aggravated assault, pointing a firearm, is permissible. We affirm.
Defendant, a Jersey City Police Officer, lived with his girlfriend S.S., and their infant daughter, S.T. After S.S. did not return home from her bartending job and failed to answer defendant's phone calls, defendant left the apartment to look for her. Defendant found S.S. in her car, with a male friend, in the parking lot of the bar. Defendant became upset, yelled at S.S. and informed her that S.T. was home alone.
S.S. returned home to check on S.T. and found her alone in her crib.*fn1 S.S. brought S.T. to her bedroom and they both fell asleep in S.S.'s bed. At approximately 4:30 a.m., defendant returned home drunk. The jury heard testimony that he grabbed S.S.'s hair, pulled her out of bed, threw her back onto the bed and began choking her. Defendant went to the closet, retrieved his service gun, pointed it at S.S.'s head while she was holding S.T., and pushed it into S.S.'s head several times. Defendant then struck S.S. in the left eye and pushed her into a full length mirror, causing an injury to her leg. The next morning, defendant attacked S.S. again, cutting her bottom lip.
Her boss advised S.S. to report the violence. She went to the police, was placed under oath, and received a telephonic temporary restraining order (TRO) against defendant. She also signed a certification that her statements were true, gave a formal victim statement, and reviewed and signed the statement. The police photographed S.S.'s injuries and asked for her permission to photograph the crime scene. S.S. consented. At the apartment the police observed a broken mirror and a clump of S.S.'s hair. Defendant was arrested. S.S. testified before the Grand Jury and confirmed her prior statements to the police.
S.S. changed her testimony, however, at trial. She testified that she attacked defendant and that he acted in self-defense. The State used her grand jury testimony at trial, as well as her statements to the judge when she applied for the TRO and her formal statement to the police as substantive evidence pursuant to N.J.R.E. 803(a)(1). The photographs taken at her apartment were also introduced into evidence.
After the verdict, defendant moved for a judgment of acquittal. Defendant argued he could not be convicted of possession of a weapon for an unlawful purpose since he had been acquitted of the underlying substantive offense of aggravated assault, pointing a weapon. The judge denied the motion. The judge found that defendant placed S.T. at risk of harm when he left the child unattended "with no definite idea as to when an adult would return." He concluded that defendant's actions therefore satisfied N.J.S.A. 2C:24-4a, endangering the welfare of a child, and that "sufficient evidence exists to enable a jury to find [the] State's charges have been established beyond a reasonable doubt."
The judge sentenced defendant to five years in prison with three years of parole ineligibility on the weapons conviction, concurrent to a five-year term on the endangering conviction and six months on the simple assault conviction.
On appeal, defendant raises the following points:
A. THE TRIAL COURT IMPROPERLY CHARGED THE JURY AS TO COUNT THREE, N.J.S.A. 2C:39-4a, BY FAILING TO IDENTIFY FOR THE JURY THE "UNLAWFUL PURPOSE" ALLEGED BY THE STATE AND SUGGESTED BY THE EVIDENCE, AS A RESULT OF SUCH, THE CONVICTION SHOULD BE REVERSED
B. IN ADDITION, THE TRIAL COURT IMPROPERLY CHARGED THE JURY AS TO COUNT THREE, N.J.S.A. 2C:39-4a, ON TWO OCCASIONS, THAT IS, IN THE INITIAL CHARGE AND IN RESPONSE TO A SPECIFIC JURY QUESTION, AS TO THE DEFINITION OF "POSSESSION", AND, ...