NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-10-0966.
Susan Remis Silver, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief).
Melissa A. Tirone, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Tirone, of counsel and on the brief).
Before Judges Yannotti, Ashrafi and St. John.
Defendant Reginald Felton was tried before a jury and found guilty of second-degree aggravated assault, serious bodily injury, and other offenses. The court sentenced defendant to eight years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction entered on December 12, 2011. For the reasons that follow, we affirm.
Defendant and Eric James (James) were charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault, bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); fourth-degree unlawful possession of a weapon, a wooden table leg, under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5(d) (count five); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six). Defendant also was charged with fourth-degree obstructing the administration of law or other governmental function, contrary to N.J.S.A. 2C:29-1 (count seven).
Defendant and James were tried together. At the trial, the State presented evidence which established that in the early morning hours on June 19, 2009, police officers Paul Tillotson (Tillotson) and Orlando Barros (Barros) responded to a report of a fight in the City of Elizabeth. Tillotson observed two black males and a white man, who was later identified as Steven Quigley (Quigley).
Tillotson saw one of the black males pulling Quigley out of his car by his wrists. Tillotson saw the other male striking Quigley over the head with a wooden table leg. According to Tillotson, Quigley was bleeding "heavily from the head." The officers sounded their air horn to stop the attack. The two black males looked in the officers' direction and took off running.
Tillotson chased the suspects on foot. Barros stayed in the police car and drove around the block to try to intercept the suspects. Quigley was told to remain on the scene because police headquarters had been informed about the incident and other officers would be responding. Quigley waited awhile but then drove himself to the hospital, where he was examined by a doctor and received thirteen stitches to his head.
The suspects ran toward an empty lot and then into the area behind some homes. Tillotson lost sight of the suspects because there were a number of trees and bushes in the area. When other officers arrived, Tillotson asked them to search the empty lot. He did not know whether the suspects were hiding in the tall grass or whether they had entered one of the houses in the immediate vicinity.
The officers observed an abandoned house in the search area. All of the first-floor and basement windows were boarded up; however, the board on one basement window was pulled away. Tillotson and other officers entered the house through that window and began to search the premises. They found defendant in a second-floor bedroom. James was found in the attic.
Tillotson and Barros testified that they recognized defendant as the man they saw pulling Quigley out of his car. Both officers said they were "100 percent" sure of their identifications. Tillotson and Barros further testified that they recognized James as the person they observed striking Quigley on the head with a wooden table leg.
After defendant and James were secured, they were placed in patrol vehicles and transported to police headquarters. Tillotson and another officer continued to search the surrounding area for evidence. They found a wooden table leg in a nearby empty lot. Samples of the blood found on the table leg were tested. The DNA profile generated from those samples matched Quigley's DNA profile.
Defendants were found not guilty on count one, robbery; and count two, carjacking, as well as certain lesser-included offenses on these counts. Defendants were, however, found guilty on count three, aggravated assault, serious bodily injury; count four, aggravated assault, bodily injury with a deadly weapon; count five, unlawful possession of a weapon; and count six, possession of a weapon for an unlawful purpose. In addition, defendant was found guilty on count seven, obstructing the administration of law or other governmental function.
Defendant thereafter filed a motion for a new trial, which the trial judge denied. Defendants were sentenced on December 12, 2011. The court merged counts three and four and sentenced defendant to eight years of imprisonment, with a NERA period of parole ineligibility. The court merged counts five and six, and imposed a concurrent four-year term on count six. In addition, defendant was sentenced to a concurrent, eighteen-month term on count seven. Appropriate penalties and fines were also imposed. This appeal followed. James has also appealed. In an opinion filed this date, we affirmed James' conviction and sentence. State v. James, Docket No. A-4049-11.
Defendant raises the following arguments for our ...