On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 09-02-87.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2012 -
Before Judges Sabatino and Ashrafi.
Defendant Vincent Norman appeals from his conviction by a jury on charges of criminal mischief and attempted escape from a county jail and his sentence of four years imprisonment. We affirm in part and reverse in part.
In February 2009, a Sussex County Grand Jury indicted defendant on the following charges: (count one) third-degree attempted escape, N.J.S.A. 2C:5-1a(1), 2C:29-5a; (count two) third-degree conspiracy to commit escape, N.J.S.A. 2C:5-2, 2C:29-5a; (count three) third-degree criminal mischief, N.J.S.A. 2C:17-3a; (count four) second-degree witness tampering, N.J.S.A. 2C:28-5(a)(1); and (count five) fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(3). Subsequently, the prosecutor voluntarily dismissed counts four and five. Defendant stood trial in May 2010 on counts one through three.
The charges arose from defendant's confinement on July 30, 2008, at the Sussex County Jail on a domestic violence charge that was eventually dismissed. Defendant was placed in a cell with two other inmates, Mayer and Thompson. The following night, the three inmates attempted to break open the window of the fourth-floor cell intending to use bedsheets to escape. Although jail guards heard loud banging during the night, they did not discover the attempt until the next morning when they saw a sheet covering the window. Closer inspection determined that the window was cracked and structurally damaged.
A repairman testified at defendant's trial that the window's security guard was "kind of bowed out" and that the angle iron, which is fastened to the main frame of the window with rivets, had been broken off. A contractor replaced the window at a cost of $2,600 for the glass, as shown by the invoice admitted in evidence at trial, plus an unspecified amount for labor.
Sheriff's investigators questioned the three cellmates about the damaged window. They observed fresh cut marks on defendant's hands and arms and took photographs of the injuries.
After the three inmates were charged with damaging the window and attempting to escape, Mayer and Thompson entered into plea agreements with the prosecution and agreed to testify at defendant's trial. They testified that all three men agreed to escape from the jail and participated in attempting to break the window. Mayer acknowledged that he was in a state of withdrawal from drugs during the incident and the events of that night were somewhat "hazy" in his mind. He testified that defendant was reluctant at first to participate in the plan but then joined in the attempt to break out of the jail.
Thompson testified that the plan to escape was originally Mayer's idea but that defendant fully participated by taking the "L bar" off the window and attempting to pry the window open.
According to Thompson, defendant removed all the rivets from the window, and he saw defendant hit and kick the window. Thompson testified that defendant was cut at some point in his efforts to break the window. The photographs of the cut marks on defendant's hand and arm were admitted in evidence.
Both Mayer and Thompson were vigorously cross-examined by defense counsel. The cross-examination highlighted for the jury Mayer's drug detoxification and Thompson's mental problems.
Defendant was the only witness in the defense case. He testified that the attempted escape was Mayer's idea and that he was not involved in causing damage to the window. He testified that he "begged" Mayer and Thompson to stop and that they threatened to "beat [him] up."
The jury found defendant guilty on all three counts. Subsequently, the court denied defendant's motion for a new trial. For purposes of sentencing, the court merged the conspiracy count with the count of attempted escape and sentenced defendant to concurrent terms of four years in prison on the attempted escape and criminal mischief charges. Defendant was also ordered to pay statutory money penalties as well as restitution of $2,879 for the cost of repairing the window.
On appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN RULING THAT THE STATE WOULD BE PERMITTED TO CROSS-EXAMINE MR. NORMAN WITH CONVICTIONS FOR DISORDERLY PERSONS VIOLATIONS.
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF MR. NORMAN'S OTHER BAD ACTS (Not Raised Below).
THE TRIAL COURT'S CHARGE ON CRIMINAL MISCHIEF, WHICH FAILED TO INSTRUCT THE JURY THAT IT HAD TO FIND THE AMOUNT OF PECUNIARY LOSS BEYOND A REASONABLE DOUBT, DIRECTED A GUILTY VERDICT ON THE CHARGE OF THIRD DEGREE CRIMINAL MISCHIEF (Not Raised Below).
THE JURY'S GUILTY VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE (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. NORMAN (Not Raised Below).
Initially, we reject without extensive discussion defendant's argument in Point IV that the jury's verdict was against the weight of the evidence. R. 2:11-3(e)(2). Defendant did not make that argument in his motion for a new trial, and therefore, it is not cognizable on appeal. R. 2:10-1. In any event, whether defendant was guilty of participating in the plan to escape and of damaging the window of his jail cell was dependent on the jury's credibility determinations at trial. In the absence of a "manifest denial of justice," we do ...