On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-04-0985.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012
Before Judges Fasciale and Maven.
Defendant appeals from his convictions for third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); fourth-degree unlawful possession of a weapon (a bat), N.J.S.A. 2C:39-5d; third-degree possession of a weapon (a bat) for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(4).*fn1 Defendant contends that the judge erred by failing to charge the jury on identification and imposing an excessive sentence. We affirm.
Defendant approached the seventeen-year-old victim in a parking lot and identified himself as the father of the victim's co-worker, someone with whom the victim allegedly had an altercation a few days earlier.*fn2 Defendant struck the victim in the head with a wooden bat and knocked him to the ground. Defendant then repeatedly kicked the victim in the head. At the end of the assault, defendant asked several witnesses if he should "kill [the victim]."
One witness pulled into the parking lot, directed his headlights on the attack, and watched the thrashing from the driver's seat of his vehicle. The witness observed defendant kick the victim "at least three" times in the head and "repeatedly" in the mid-section, and described the event as "sickening." He sounded his horn to scare off defendant and then watched defendant, and some others, enter a dark-colored SUV and drive away. As they drove away, the witness called 9-1-1 and provided a description of defendant as well as the SUV's license plate number, to the police dispatcher.
The victim attempted to drive himself to a nearby hospital, but only managed to travel approximately 400 feet before he stopped in the middle of the road and waited for assistance. Officer Michael Flowers located the victim who stated that he had been hit in the head by a bald-headed black male, approximately 5'7" tall, wearing a red-hooded sweatshirt and black jacket. The victim informed Officer Flowers that defendant left the scene in a black Range Rover and the police then broadcasted the descriptions over the radio.
Simultaneously, Officer Edwin Diaz stopped a nearby vehicle fitting the description that the 9-1-1 caller gave. He approached the SUV, observed defendant seated in the driver's seat, and asked for his credentials.*fn3 Defendant produced a vehicle registration and an insurance card, but no license, and then identified himself as Derrick Osborn. The officer returned to his police car, checked the name in a DMV database, and learned that no such person existed. He realized that defendant fit the description broadcasted over the radio, directed defendant and the others to exit the SUV, and then searched the vehicle. After the officer observed a black bat and dog repellant in the SUV, he arrested defendant and transported him to headquarters.
The police placed defendant in a holding cell and began processing him. While doing so, three officers overheard defendant admit to the altercation with the victim in the parking lot. Although defendant maintained at first that his name was Derrick Osborn, the police confirmed defendant's true identity through his fingerprints.
The judge conducted an eight-day trial in January and February 2011. The state produced testimony from four police officers, the victim, and the physician who treated the victim in the hospital. At trial, the victim identified defendant as the individual who attacked him. Defendant did not testify and produced three witnesses: a McDonald's shift manager; his girlfriend, who is also the victim's co-worker's mother; and the co-worker. The jury then found defendant guilty of the assault and weapons-related offenses. On March 18, 2011, the judge granted the State's motion to treat defendant as a persistent offender, pursuant to N.J.S.A. 2C:44-3a, and imposed an aggregate nine-year prison term with four years of parole ineligibility.*fn4 This appeal followed.
On appeal, defendant raises the following points:
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE ISSUE OF IDENTIFICATION, AND THAT IT WAS THE STATE'S BURDEN TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL ON COUNTS ONE, TWO, AND THREE, AND CONSTITUTED PLAIN ERROR, BECAUSE DEFENDANT'S IDENTITY AS THE VICTIM'S ATTACKER WAS THE KEY ISSUE ON THOSE ...