NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2012
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1128.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Maven.
In May 2010, an Essex County grand jury charged defendant with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (Count Two); second-degree burglary, N.J.S.A. 2C:18-2(b)(1) (Count Three); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Count Four); fourth-degree unlawful possession of a weapon, 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).
A jury found defendant guilty of second-degree burglary (Count Three), but acquitted on all other charges. A trial judge sentenced defendant to five years imprisonment with a three-year term of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fines and penalties were imposed.
Defendant Marcia Coke appeals from a May 27, 2011 judgment of conviction and sentence. We affirm.
There was conflicting testimony at trial among defendant, the victim, and one eyewitness, defendant's boyfriend. We summarize the facts, acknowledging each side's version without detail that is unnecessary for our review.
Defendant and Lavana Clarke (Clarke), the victim, were simultaneously involved in a sexual relationship with Warrington Ford (Ford). Prior to this incident, defendant and Ford shared his basement apartment, but both had moved out some time prior to the event in question. Ford, however, continued to socialize with his friends at the apartment.
Defendant testified that on December 26, 2009, at around 9:00 p.m., she arrived at the basement apartment, only to find Clarke there with several other people. Defendant and Ford went into the kitchen where defendant confronted him about Clarke. Defendant testified that she began to walk away, but Ford grabbed her and held her arms back. Clarke then entered the kitchen and began cursing at defendant. Defendant further testified that while Clarke was yelling at her, Clarke picked up a glass cup and slashed defendant's face. Defendant denied that anyone picked up a knife during the altercation.
Clarke testified that she went into the kitchen to clean out an ashtray when defendant began to yell at her. Clarke stated that defendant picked up a knife and began to move towards her. Clarke admits to having thrown a can at defendant during the altercation, but denies injuring defendant.
Ford corroborates Clarke's testimony, stating on the record that defendant picked up a knife after Ford admitted to having a relationship with Clarke. Ford testified that he took the knife from defendant and threw it behind the refrigerator. Ford, however, testified that he had retrieved the knife from defendant before Clarke entered the kitchen.
After the altercation, defendant left the apartment with Ford to attend a party at his uncle's home. Defendant and Ford both testified that Ford left the party without telling defendant, at which point Ford returned to the basement apartment. A few hours later, between 3:00 a.m. and 4:00 a.m. on December 27, 2009, defendant returned to the apartment where she saw Ford's car outside. Defendant testified that she went back to the apartment to talk to Ford about the altercation that had occurred the prior evening.
At trial, defendant stated that she knocked on the basement windows and called out Ford's name for approximately ten minutes. Clarke and Ford were in the apartment together. They both testified that they heard defendant calling out Ford's name, but neither answered her. Clarke testified that defendant banged on the window and screamed "Warren, open the door. I know you're down there with that [Bitch]."
Defendant testified on direct that after receiving no response, she opened an unlocked window and entered the apartment so to talk to Ford. Clarke and Ford testified that the window was locked. Clarke stated that she heard defendant using a rock to break through the window. Defendant later admitted on cross-examination that she did in fact use a rock to break open the window.
Nonetheless, defendant testified that she entered the apartment foot first, at which point she felt a bottle hit her leg. Clarke testified that she tried to use a mirror to block defendant from entering the apartment and later hit defendant's leg with a bottle. Defendant eventually slid into the dark apartment. The parties agree ...