On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-3093 and 08-01-0109.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012 -
Before Judges Messano and Kennedy.
A Camden County Grand Jury returned an indictment charging defendant with second-degree aggravated assault upon Christopher Eife, N.J.S.A 2C:12-1(b)(1) (count one); third-degree aggravated assault upon Larry Robinson, N.J.S.A. 2C:12-1(b)(7) (count two); third-degree subjecting a law enforcement officer, Camden County Sheriff's Officer Eife, to bodily fluid, N.J.S.A. 2C:12-13 (count three); third-degree resisting arrest by using or threatening physical force, N.J.S.A. 2C:29-2(a) (count four); and third-degree aggravated assault on law enforcement officers Eife "and/or" Sheriff's Officer Robinson "and/or" Sheriff's Officer William Murray, N.J.S.A. 2C:12-1(b)(5)(a) (count five).
Following a jury trial, defendant was acquitted on counts one and three; convicted of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1(a), on count two; and convicted on counts four and five.*fn1 Defendant was sentenced to a five year term of imprisonment, subject to a parole ineligibility period of two and one-half years, on counts four and five, and to a six-month term of imprisonment on the lesser-included disorderly persons offense on count two, all to run concurrently. These sentences were to run consecutively to defendant's sentence for a violation of probation on an earlier conviction.*fn2 Defendant now appeals from his convictions and sentence.
I. We gather the facts from the trial record.
On November 29, 2006, at approximately 6:30 p.m., Laura Schreck, a sergeant with the New Jersey Division of Parole, and two other parole officers, Paul Kapp and Scott Allen, were outside the probation building on North 5th Street in Camden waiting to speak to defendant. Sergeant Schreck had asked the Camden County Sheriff's Office for assistance, if needed, and officers Eife, Robinson and Murray were on the scene to provide back-up to the parole officers. At the time, Schreck was assigned to "an electronic monitoring unit" that would "supervise offenders that are on the bracelet [while] on parole."
Shreck was dressed in plain clothes, but wore a badge on a lanyard around her neck. Kapp was also in plain clothes, but wore a badge and a police jacket. Eife wore plain clothes, but had his badge on a lanyard over a police vest. Murray was in full uniform.
As defendant left the probation building, he was followed by the sheriff's officers, and Schreck approached defendant, identified herself and asked to speak with him. Defendant at this point raised his arms in the air, and tried to walk past Schreck. She then told defendant to stop and stated he was under arrest. Defendant tried to push past her, and the officers on the scene reacted and tried to get defendant to put his hands behind his back for handcuffing. Defendant then began flailing his arms in resistance.
Schreck and the five other officers brought defendant to the ground in a prone position, employed by officers in response to "extreme resistance." Each officer attempted to control a different part of defendant's body. It took the officers approximately two minutes to subdue the struggling defendant.
During the struggle, Robinson and Murray suffered rotator cuff tears, Schreck was cut and bruised on her hand, and Eife claimed he was bitten by defendant and his hand was splattered by defendant's saliva. Eife sought medical attention and was given medication to address possible HIV exposure.
Defendant did not testify at trial, but did present testimony from a medical expert pertaining to injuries he claimed to have suffered during the event. The jury returned the verdict set forth above.
The State moved to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The trial judge denied the motion, and acknowledged that while defendant was eligible for sentencing as a persistent offender, "an adequate sentence [could] be ...