On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-06-1018.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Messano and Espinosa.
Following a jury trial, defendant Luis D. Rivera was found guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). The judge sentenced defendant on count one to a custodial term of five years with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After merging count three into count two, the judge imposed a concurrent term of four years in prison.
Defendant raises the following issues on appeal:
THE COURT COMMITTED ERROR BY NOT SUPPRESSING THE DEFENDANT'S STATEMENT POINT TWO
THE PROSECUTOR COMMITTED NUMEROUS INSTANCES OF MISCONDUCT, THE ACCUMULATION OF WHICH VIOLATED THE APPELLANT'S RIGHT TO A FAIR TRIAL, FREE OF PREJUDICE AND IS GROUNDS FOR A NEW TRIAL POINT THREE
THE APPELLANT'S CONVICTIONS TO THE CHARGES OF AGGRAVATED ASSAULT, POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, AND UNLAWFUL POSSESSION OF A WEAPON SHOULD BE REVERSED AS THE JURY'S VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE POINT IV
THE APPELLANT'S SENTENCE WAS EXCESSIVE AS THE COURT SHOULD HAVE IMPOSED A SENTENCE ONE DEGREE LOWER ON THE CONVICTION FOR THE SECOND DEGREE AGGRAVATED ASSAULT We have considered these arguments in light of the record and applicable legal standards. We affirm.
James N. Stanley, a bouncer at The Perle Nightclub in New Brunswick, testified that on March 25, 2007, defendant was a patron in the club. When Stanley received a complaint about defendant's conduct, he escorted defendant out of the club. Sometime later, Stanley went outside the club, saw many people gathered and defendant lying on the ground across the street near an alleyway to the right of the club's front door. Someone pointed out to Stanley a knife that was near the alley.
A second bouncer, Doug Rader, testified that after Stanley escorted defendant from the club, defendant remained nearby, "drunk, obnoxious, and loud" and "preventing people from getting in." Rader told defendant, "Sir, the night is over for you. You are not coming back inside. Please move along. Just go somewhere else." Shawn McDonough, an off-duty bouncer standing outside the bar, told defendant he "need[ed] to . . . leave." When defendant refused, McDonough tried to escort him away from the front of the bar. "Another individual [came] outside from the bar," hit defendant, and went back inside. When defendant attempted to re-enter the club, McDonough grabbed him from behind. At that point, defendant "stabbed [McDonough] two times" under his shoulder and in his rib cage.
Rader "heard a scuffle," saw defendant's "arms flailing" and McDonough "trying to get away from [defendant]." As Rader approached, he saw that defendant "had a knife in his hands." Rader testified that Joseph Iwanski, another bouncer, tackled defendant to the ground, at which point "[t]he knife bounce[d] out of his hand." Rader moved the knife away from defendant and "placed [it] back down on the ground" as police arrived on the scene.
New Brunswick Police Sergeant George Bistany was patrolling the area when he "was flagged down by a . . . big crowd of people" near the club. Upon exiting his car, Bistany found defendant lying "on the ground . . . bleeding from the head." McDonough approached Bistany, pulled up his shirt and showed the sergeant "[c]ut marks, like knife marks, on his torso and his side." Bistany testified that Rader "picked [the knife] up off the ground, and handed it to" him.
Bistany "got [defendant] off the ground" and placed him in handcuffs. Both McDonough and defendant were transported to the hospital via ambulance to be treated for their injuries.
Defendant's girlfriend, Maria Tapia, testified as a defense witness. She had gone to the club with defendant and her girlfriend, Daniela. Tapia testified that they left the club and were on their way to the car when a bouncer insulted defendant. Another bouncer came and punched defendant in the head, and three others surrounded defendant. Tapia claimed that the bouncers cornered defendant, hit him, kicked him in the back of the knees, knocked him down, stomped on his face and did not stop until they tired. Tapia identified photographs she took showing defendant's injuries.
Tapia also claimed that when the police arrived, the men ran into an alley while defendant lay unconscious where he fell. Tapia repeatedly denied ...