On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-06-1091.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2013
Before Judges Ashrafi, Hayden and Lisa.
The opinion of the court was delivered by ASHRAFI, J.A.D.
By our leave, R. 2:2-4; 2:3-1, the State appeals from an order of the trial court compelling the victim of an alleged aggravated assault to undergo an eye examination by a doctor selected by the defense. We reverse and remand for further consideration of defendant's discovery application within the framework of our analysis.
In June 2011, a Hudson County grand jury indicted defendant Roskilde Gomez on one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The indictment charged that defendant attempted to cause, or purposely or knowingly did cause, serious bodily injury to the victim.
According to the State, on the morning of February 5, 2011, the nineteen-year-old victim was working in the parking lot of a department store in North Bergen collecting shopping carts. A car driven by defendant attempted to park in a space where the victim was working. Defendant and a male passenger got out of the car and argued with the victim. As the victim began to walk away, defendant punched him in the face several times. The victim fell to the ground, and defendant then kicked him in the stomach. Defendant and his passenger went into the store for a few minutes before they got back into their car and left the area.
When the police arrived, the victim's face was red and swollen, and he was bleeding above his left eye. He was taken to Meadowlands Hospital, where he was examined and treated by Pierre Guibor, M.D., Chief of Ophthalmology Services. Dr. Guibor determined that the victim had suffered facial injuries including a left orbital fracture and that the trauma caused impairment of the vision in his left eye.
The police identified defendant as the assailant by tracing the license plate number of the car and by photographs taken by surveillance cameras showing defendant entering and leaving the store near the time of the assault. Subsequently, the victim and an eyewitness to the assault positively identified defendant as the assailant.
Over the next several months, Dr. Guibor continued to treat the victim's eye injury. He issued a report dated October 4, 2011, which included a diagnosis of "[r]esidual & persistent double vision superior left gaze which is permanent." The doctor's treatment plan was "for possible reconstructive surgery left orbit." The report also stated that the injury to the left eye "may be more progressive with time and result in orbital surgery in the future."
After his indictment, defendant moved to require that the victim be examined by John R. Stabile, M.D., an ophthalmologist selected by the defense. Dr. Stabile's intent was to conduct an eye examination including a dilated fundus examination, a confrontational visual field test, and a muscle balance test. Defense counsel explained that the first test required the dilation of the pupils with eye drops, and the doctor would then look into the eye with a lens and a light to view the entire retina. For the second test, the patient would cover one eye while the doctor would sit in front of him and test his field of vision. The muscle balance testing required the patient to keep his head straight and follow an object with his eye.
The trial judge ordered the victim to undergo non-invasive examination of his eyes at Dr. Stabile's office in Tenafly within thirty days. The State moved for reconsideration. Among other contentions, the State argued that the victim objected to the examination because he would lose time from work or school, and also because he believed the defense was trying to intimidate and harass him so that he would stop cooperating with the prosecution.
The trial judge denied the State's motion for reconsideration, explaining the reasons for his order. He stated that the physical examination was highly relevant to the charge brought against defendant because the extent of the injury would determine the degree of the offense under our criminal laws. He added that the court had limited the scope of the examination by excluding the invasive dilated fundus procedure, which required medication to be ...