On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-09-1653.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011
Before Judges Axelrad and Sapp-Peterson.
Following a jury trial, defendant was acquitted of second-degree disarming a police officer, N.J.S.A. 2C:12-11 (Count Three) but found guilty of two counts of fourth-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5) (Counts One and Two), and one count of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (Count Four). At sentencing, the court imposed an aggregate custodial sentence of three years, together with fines and penalties. We affirm.
According to the State's evidence, the convictions arose out of defendant's actions on the evening of August 9, 2008, when his sister called 911 for assistance regarding an "unwanted intoxicated male" in her apartment. When police arrived at the location, defendant was standing in the middle of the street. When the first officer who arrived at the scene, Officer Thomas Guzman, exited his police vehicle, defendant started to shout expletives, approached the officer, and swung at him, striking the officer in the head. A scuffle ensued, and with the assistance of a second officer, Gillberto Simao, who arrived as back-up, defendant was subdued, but not before he grabbed Officer Guzman's holster.
Both officers testified that during the scuffle, defendant grabbed the holster and tugged on it three or four times. Defendant's sister, Maria Amely ("Maria"),*fn1 and her husband, George Gundersen, gave conflicting testimony on this issue. Gundersen testified that defendant grabbed Officer Guzman's belt, not the gun itself, and it appeared that defendant was attempting to keep himself from falling in grabbing the officer's belt. On re-direct, however, the prosecutor confronted Gundersen with his statement taken in February 2010, in which Gundersen stated defendant was reaching for the officer's gun belt. Gundersen then testified that his earlier statement correctly reflected what happened.
Maria's testimony was also at odds with an earlier statement. In August 2009, she was informally interviewed and stated defendant punched both officers and grabbed Officer Guzman's gun. According to her, defendant swung at Officer Guzman but missed and then grabbed the officer's belt. At trial, however, she testified defendant did not charge towards Officer Guzman but swung at him and missed. She also testified defendant grabbed the officer's belt, but later said he grabbed the holster and that she never saw defendant grab the gun.
In addition to bringing out inconsistencies between Maria's and Gundersen's earlier statements and their trial testimony, defense counsel questioned the two witnesses about whether the State, in exchange for their cooperation in connection with defendant's case, made any promises to them related to charges pending against them since November 2009. Both witnesses denied that any such promises had been made to them. They both acknowledged, however, they did not give their formal statements about the incident involving defendant until February 2010, more than eighteen months after the incident and after they had been charged with their pending criminal charges.
Following Gundersen's testimony, the State advised the court that in light of questions posed to Gundersen during cross-examination, it intended to add Assistant Prosecutor Thomas Carver, who was prosecuting the charges against Maria and Gundersen, to its witness list. Defense counsel objected, and the court directed the State to proceed with its other witnesses while it took the issue under consideration. The court ultimately agreed that Carver could testify, but defense counsel could not get into the specifics of the pending charges.
The trial court expressed its position that it was unusual to have an assistant prosecutor testify but permitted the testimony, reasoning that Carver's name has been referred to, the specifics with respect to whether or not there's been this somehow preferential treatment given to these witnesses to testify in this case and he's been pointed out in the court not your typical scenario as well sobeit unusual I think for the limited purposes that he should be permitted to testify if that's what the State wants to do.
Initially, without objection, Carver answered questions about his education and his employment background. He denied making any promises to Gundersen or Amely. On cross- examination, he was questioned at length about bail and arraignment procedures, as well as how cooperation with law enforcement may impact the sentencing of a defendant.
During summation, defense counsel objected to the prosecutor's comment that "defense counsel doesn't care if they're [meaning Maria and Gundersen] innocent or not but yet he asked them about their crime and asked them whether or not they did it in front of you all to take [their] right to remain silent." In response, the prosecutor accused defense counsel of defying the court's order limiting the scope of questions posed to Gundersen and Amely ...