On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-06-0572.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 26, 2012 -
Before Judges Parrillo and Skillman.
A jury found defendant guilty of conspiracy to commit second-degree aggravated assault, in violation of N.J.S.A. 2C:5-2; second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault with a deadly weapon, in violation of N.J.S.A. 2C:12-1(b)(2); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d); and unlawful possession of a deadly weapon, in violation of N.J.S.A. 2C:12-1(b)(2). The trial court sentenced defendant to eight-year terms of imprisonment for conspiracy to commit aggravated assault and aggravated assault, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2; three-year terms of imprisonment for third-degree aggravated assault and possession of a weapon for an unlawful purpose; and a one-year term of imprisonment for unlawful possession of a weapon. All of the sentences were made concurrent with each other.
The victim, Kenneth Jackson, was a co-worker of defendant's wife, Donna Hess. Jackson noticed that Donna was in a bad mood the day of the offenses, which was November 30, 2005. While they were sitting in a bar after work, Jackson asked Donna why she was in a bad mood, and Donna said defendant "had been calling her and harassing her all day." Jackson told her to give him the telephone the next time defendant called. When defendant called again about five minutes later, Jackson got on the telephone and told defendant "to stop calling [Donna] and harassing her. Leave her alone." Defendant asked Jackson who he was, and Jackson responded, "This is her new man." Defendant then got very angry and started calling Jackson names, so Jackson hung up the telephone.
Defendant called back a short while later and said he wanted to meet Jackson "in Franklinville somewhere." Jackson refused to meet defendant there, but told him that he was going to Geet's Diner to eat and that defendant could meet him at that location. While Jackson was eating dinner, defendant called and told him that he was "on his way," to which Jackson responded, "Fine[,] I'm here."
After Jackson and Donna finished eating, they went to the front of Geet's. Sometime later, co-defendant Cyndy Attanasio walked up to Jackson and said, "Are we going to do this or what?" and Jackson responded, "Let's go." Jackson followed Attanasio into the Geet's parking lot. A beige truck pulled up behind Jackson, following which a man jumped out and hit him on the head with a claw hammer. Jackson punched his assailant, knocked him down to the ground, and started "beating on him." The assailant then took an open four-inch buck knife out of his pocket and stabbed Jackson multiple times.
Jackson further testified that at some point during his encounter with his assailant, Attanasio stabbed him in the back with a drywall saw.*fn1
After receiving these wounds, Jackson got up from the ground and retreated to the side of the diner where it was lighter and there were other people. Jackson subsequently took his assailant to the ground a second time and was holding down his hands, one of which contained the hammer and the other the knife. At this point, a friend of Jackson's, Thomas Baals, came to his assistance and knocked the hammer and knife out of the assailant's hands. Jackson then let his assailant up from the ground, and the assailant ran away.
Jackson wrote down the license plate number of the car that the assailant got into, and Donna relayed that number to the police. The police later stopped a car with that plate number, being driven by defendant's friend Brian McDowell, in which defendant and Attanasio were riding as passengers.
In addition to Jackson and Baals, the State also presented testimony by Jennifer Golley and Alesa Dill, two patrons of Geet's who observed the end of the altercation between Jackson and defendant, both of whom observed Jackson's assailant exit the Geet's parking lot in a suburban truck.
Neither Jackson, Baals, Golley nor Dill was able to identify defendant as the person who had assaulted Jackson.
The only witness who identified defendant as a participant in an altercation with Jackson was McDowell, a prosecution witness declared hostile by the trial court, who testified, based largely on pretrial statements to the police, that he drove defendant and Attanasio to Geet's at defendant's request and observed Jackson and defendant fighting. However, McDowell's version of the incident was markedly different from that of Jackson and the other eyewitnesses. According to McDowell, Jackson attacked defendant and "beat [him] up." McDowell testified that defendant was not armed during the altercation. In addition, McDowell testified that Donna attacked Attanasio and "beat [her] up." Defendant and Attanasio then got back into his vehicle, and he drove away from the scene.
Based on this evidence, the jury found defendant guilty of all the charged assault and weapons offenses.
On appeal, defendant presents the following arguments:
POINT I: THE JURY INSTRUCTIONS WERE FATALLY FLAWED, IN THAT THEY DID NOT INCLUDE AN INSTRUCTION ON IDENTITY, AND THE INSTRUCTIONS ON AGGRAVATED ASSAULT, CONSPIRACY, AND POSSESSION OF A WEAPON WERE HOPELESSLY CONFUSING, MISLEADING AND ERRONEOUS, THEREBY DEPRIVING ...