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State of New Jersey v. Bernard Jenkins

December 13, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BERNARD JENKINS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-09-2770.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 14, 2012 --

Before Judges Yannotti and Harris.

Defendant Bernard Jenkins appeals from the judgment of conviction entered by the trial court on July 8, 2011, and challenges his convictions for second-degree aggravated assault, serious bodily injury, and other offenses, as well as the sentences imposed. For the reasons that follow, we affirm.

I.

Defendant was charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count two); and fourth-degree throwing a bodily fluid at certain law enforcement officers, N.J.S.A. 2C:12-13 (count three). Defendant was tried before a jury.

At the trial, Corrections Officer Russell Hicks (Hicks) testified that on June 27, 2008, he was working in the Camden County Correctional Facility. Hicks was beginning his shift at around 8:00 a.m., when he noticed a disturbance in the back of a cell, which consisted of banging and yelling. Hicks learned that defendant was causing the disturbance.

Defendant asked one of the officers to identify the staff person on duty, and defendant was told that it was "Hicks" or "Hickson." Defendant said that, "Hickson, huh, I don't like that motherfucker." Hicks asked the staff person to step away from the door to defendant's cell.

Hicks approached and asked defendant, "What is the problem? What do you need from us? What's going on?" According to Hicks, defendant replied, "[F]uck you." Defendant told Hicks "to get out of [his] face" and said that, if Hicks entered the cell, he would do what he said he would do to the officer on the previous shift. Defendant said, "I'm going to fuck you up too."

Hicks went to discuss the matter with his partner, Corrections Officer Michael Bush (Bush). Hicks returned to defendant's cell and told him he was going to confiscate his sneakers so that he could not bang and kick the cell door. Defendant threw a sneaker toward the door and the other sneaker toward his bed. Hicks ordered defendant to back away. Defendant backed up, and Hicks stepped into the cell. Bush followed him.

Hicks testified that, when he leaned over to pick up one of the sneakers, defendant stepped forward and threw a punch at him. An altercation ensued. At one point, defendant lunged at Hicks and bit him on the face. Bush tried to stop defendant but was unable to do so. Defendant continued to bite Hicks.

Eventually, defendant released Hicks. Hicks testified that defendant spit at him, hitting him in the face and arm. He later found out that it contained a piece of his skin. Hicks was taken to the hospital for treatment. He required stitches on his face, and he remained out of work for three weeks.

Bush testified that defendant had been kicking the door to his cell and yelling when he arrived to start his shift at around 8:00 a.m. Bush saw Hicks open the door to defendant's cell. He said that Hicks and defendant became "entangled." Hicks was trying to get defendant to the ground, but defendant reached up and bit him on the right side of his chin. Bush saw defendant spit out skin he had bitten off Hick's face.

Corrections Officer Ronald Makaymowicz (Makaymowicz) testified that he recorded in his log that defendant was "being a pain." After the incident, Makaymowicz took defendant for medical treatment. He heard defendant say, "Fuck all you mother fuckers. I told you what I would do." In addition, Corrections Officer Steven McComb testified that he heard defendant say, "I told you that I would get that motherfucker if he came into my cell."

Defendant testified on his own behalf. He stated that he had asked Hicks to call a sergeant because he was having medical issues, as a result of being shot nine times in the leg and face. Hicks refused. Defendant said that Hicks put on gloves, took out a walkie-talkie and entered the cell. According to defendant, Hicks started beating him with the walkie-talkie and his fists. Hicks claimed that Bush stood by and watched Hicks beat him.

Defendant said that he told Hicks to stop but he did not listen. Defendant thought his life was in danger. Defendant presented a photograph, which he described as showing his face bleeding from the gashes that Hicks inflicted with the walkie-talkie. Defendant claimed that Hicks had knocked out some teeth and chipped other teeth.

Defendant further testified that he could not remember biting Hicks. He stated that he received a concussion in the altercation. Defendant recalled trying to defend himself, but said that he was not in any condition to fight because of his many medical issues. On cross-examination, defendant again denied biting Hicks, but acknowledged that Hicks' face was injured in the incident.

The jury found defendant guilty on all three counts. The court found that defendant qualified for extended-term sentencing as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). On count one, the court sentenced defendant to a term of twelve years in State prison, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent five-year term on count two, and a consecutive eighteen-month term on count three. Appropriate monetary penalties also were imposed.

Defendant appeals and raises the following arguments for ...


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