On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-11-2796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2012
Before Judges Cuff and Waugh.
Defendant Vincent Sanborn appeals his conviction for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count two); two counts of fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (counts three and four); two counts of third-degree possession of a weapon for unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (counts five and six); and the disorderly persons offense for resisting arrest, contrary to N.J.S.A. 2C:29-2(a). Sanborn also challenges his aggregate sentence of eight years with an eighty-five-percent period of parole ineligibility. We affirm.
We discern the following facts and procedural history from the record on appeal, including the trial transcript.
On the night of August 15, 2009, Sanborn slept at the apartment of his wife, to whom we refer by the pseudonym Susan. Sanborn and Susan were separated, but considering a reconciliation. Sanborn was still asleep on a chair in the living room on the afternoon of August 16, when Susan was about to leave for work. Because she did not want Sanborn in her apartment when she was not there, Susan woke him up and asked him to leave. She had difficulty waking him.
When Sanborn resisted her attempts to get him to leave, Susan held a cellphone in her hand and told Sanborn she would call his mother if he did not leave. Sanborn grabbed the cellphone from Susan and threw it against the wall, breaking it. Susan then used her cordless telephone to call 9-1-1. Sanborn ripped the cordless telephone's receiver off the wall and threw it against the wall, causing the receiver to break and rendering it inoperable.
After breaking both telephones, Sanborn held Susan's head with one hand and punched her four times in the face and head, including her eye, with the other. Susan "heard things crack and pop and . . . felt excruciating pain" when Sanborn hit her in the eye. Susan also stated that she lost vision during the attack.
Despite Susan's requests that he stop, Sanborn subsequently hit Susan multiple times in her head and face with a stainless steel toaster oven, a stainless steel coffee maker and carafe, and a microwave oven. When Susan attempted to block them from hitting her, she suffered lacerations to her hands and arms. Susan testified that while Sanborn was attacking her, he said she was not "going to call [his] mom . . . and ruin his life," that "[she] was [fuckin'] dead," and that "[h]e was going to make [her] head explode like [a fuckin'] grape."
Susan escaped the apartment and was assisted by her neighbors, who kept Sanborn away from her. The Atlantic City police were dispatched to Susan's apartment complex. Upon arriving, they found Sanborn in the building's parking garage. Sanborn "speedily" walked away when police arrived. He initially ignored their requests for him to stop. When the officers questioned Sanborn, he provided them with a false name. He subsequently resisted the officers' attempts to arrest him. Sanborn did not subside until one officer threatened to release his K-9 partner.
Sanborn was indicted on November 23, 2009. He waived his right to a jury trial. A bench trial on all charges was held on June 2, 7, and 16, 2010. Susan testified to the facts outlined above. There was also medical and lay witness testimony about the nature and extent of her injuries.
Sanborn elected to testify on his own behalf. He admitted that he and Susan argued, but disputed her overall account of the incident. Although he admitted that he threw her cellphone during his direct examination, he denied having done so during cross-examination. Sanborn testified that he did not strike Susan with his hand or with any appliance. Instead, he asserted that he struck the coffee maker during the argument, causing it to hit Susan in the eye and the toaster to fall to the ground.
He also asserted that he struck the top of the microwave oven in a downward motion, which caused it to fall to the ground. He claimed Susan tripped over the fallen microwave as she ran out of the apartment.
Sanborn suggested that Susan provoked this burst of anger because he was in the intensive supervision program (ISP), that she actually threatened to call the police, and being reported to the police was an ISP violation that would cause him to go back to jail. Consequently, he "panic[ked]" after Susan called the police and "lost it" when, in an attempt to leave the apartment, he could not locate his ISP journal.
Sanborn admitted to his interaction with police, explaining that he acted that way in order to avoid going back to jail for an ISP violation.
The judge found Sanborn guilty of all charges. Sentencing was held on July 16. The judge denied the State's motion for imposition of an extended term sentence. Following mergers, the judge sentenced Sanborn to eight years with an eighty-five-percent period of parole ineligibility on count one, a concurrent fourteen-month sentence on count three, and a concurrent 180-day sentence on the disorderly persons offense. He also imposed required fines and penalties. This appeal followed.
Sanborn raises the following issues on appeal through assigned counsel:
POINT I: THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF OTHER BAD ACTS OF MR. SANBORN AND IN DOING SO WITHOUT SUBJECTING THE EVIDENCE TO THE COFIELD TEST (NOT RAISED BELOW)
POINT II: THE TRIAL COURT ERRED BY FAILING TO CONDUCT A SANDS HEARING CONCERNING THE ADMISS[I]BILITY OF MR. SANBORN'S PRIOR CONVICTIONS AND FAILED TO ADVISE MR. SANBORN THAT SHOULD HE TESTIFY HIS PRIOR CONVICTIONS WOULD BE ADMISS[I]BLE AGAINST HIM (NOT RAISED BELOW)
POINT III: THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS TO TESTIFY THAT HE AND HIS K-9 PARTNER WERE DISPATCHED . . . BECAUSE THE POLICE HAD INFORMATION FROM A NON-TESTIFYING WITNESS THAT MR. SANBORN WAS INTOXICATED AND HAD A HISTORY OF DOMESTIC VIOLENCE (NOT RAISED BELOW)
POINT IV: THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE FINDING OF THE TRIAL COURT THAT MR. SANBORN ACTED WITH PURPOSE TO CAUSE SERIOUS BODILY INJURY (NOT RAISED BELOW) POINT V: CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT VI: THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. SANBORN (NOT RAISED BELOW)
POINT VII: MR. SANBORN'S SENTENCE MUST BE MODIFIED TO AWARD HIM THE GAP TIME CREDIT TO WHICH HE IS ENTITLED
He raises the following additional issues in a supplemental pro se brief:
Point 1 - There wasn't sufficient credible evidence on the record to support the courts findings Point 2 - The court failed to use the eviden[t]iary standard of beyond a reasonable doubt Point 3 - The court erred by allowing the trial of a subs[e]quent disorderly persons violation during the primary assault case Point 4 - The court ignored reasonable, supporting evidence that would negate a purposeful mental state Point 5 - The court had erroneously and mistakenly derived conclusions that went heavily in the State's favor Point 6 - While rendering verdict the court failed to make clear and specific findings
Some of the points raised on appeal were not raised before the trial judge. Pursuant to Rule 2:10-2:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error ...