On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-04-0870.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2011
Before Judges A. A. Rodriguez and Coburn.
Following a jury trial, defendant Christopher John Fasano was convicted of second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); second-degree eluding, N.J.S.A. 2C:29-2(b); second-degree aggravated assault while fleeing, N.J.S.A. 2C:12-1(b)(6); and third-degree assault, N.J.S.A. 2C:12-1(a). After merging the convictions, Judge Ronald Lee Reisner imposed two consecutive eight-year terms subject to NERA*fn1 for the burglary conviction and the aggravated assault conviction. We affirm.
These convictions result from an incident of domestic violence between divorcing spouses. After twenty-one years of marriage, defendant and his wife divorced. They had three children, ages eighteen, fourteen and ten. Defendant had moved out of the marital home in Brick Township and resided in Pennsylvania.
On December 7, 2009, defendant drove to the former marital home and picked up the two younger children and their friend for the weekend. Before leaving, defendant and his former wife had a heated argument concerning ownership of a coin collection. Police officers responded after the former wife called 911 and asked defendant to leave. On the drive back to Brick two days later, defendant's driving became erratic and reckless. He spoke to himself loudly, saying, "I'm going to get her," and "that bitch is dead." He even said that he "could hit a pole and . . . this could all be over."
When defendant arrived at the house, his former wife was having a cigarette in the garage. When she opened the door to the house, defendant charged into the garage toward her, holding an eight-inch knife. As she attempted to defend herself, defendant pushed her to the ground.
A moment later, the couple's fourteen-year-old daughter intervened, hoping to distract her father. Defendant turned toward her and stopped. He turned around and fled in his truck. The victim was cut on her chin, had a large laceration on her left hand and a smaller cut on her right thumb. Defendant's son also suffered a laceration on his hand which required five stitches.
Police arrived and obtained defendant's cell phone number to track defendant's movements. After leaving the house, defendant drove to his friend Robert Wright's house. Although Wright did not allow defendant into the house, he agreed to meet at a local bar. After talking to Wright, defendant agreed to go to his mother's house.
Holmdel Police Patrolmen John Allen and Jeffrey Todd began following defendant as he drove towards his mother's house.
When the officers activated their lights, defendant entered the Garden State Parkway. After a brief chase exceeding one-hundred miles per hour, defendant was able to lose Patrolman Todd.
With only one officer behind him, defendant exited the highway in Tinton Falls. As the chase continued onto smaller roads, defendant suddenly slammed his brakes. Allen swerved alongside defendant's vehicle to avoid a collision. Defendant disabled Allen's car by ramming it twice and fled the scene.
Later that evening, Wright agreed to call defendant to assist the police with locating him. Defendant answered and warned that no police should attempt to find him. Meanwhile, the Tinton Falls Police Department learned that defendant had visited his brother's house. There they found defendant's abandoned truck.
The next day, defendant unexpectedly appeared at Wright's business. Wright convinced defendant to go to the hospital. En route to Monmouth Medical Center, the police intercepted the vehicle and arrested defendant.
During defendant's trial, one of the jurors informed the judge that she lived near where defendant and Allen had crashed and had personally seen the disabled police vehicle. The judge immediately dismissed the juror and conducted an extensive voir dire of the remaining jurors. The voir dire resulted in the dismissal of another juror who had conversations about the accident with the dismissed juror. The judge denied defendant's motion for a mistrial stating that he was satisfied that the jurors responded to the court's questioning truthfully and their deliberations would not be affected by the brief comments of the dismissed juror.
On appeal, defendant contends:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF JUROR MISCONDUCT, WHICH PREVENTED THE DEFENDANT FROM ...