NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-09-1796.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu,
Deputy Attorney General, of counsel and on the brief).
Before Judges Ostrer and Hayden.
This case involves an altercation over money between two adult brothers. Defendant Thomas Freeman appeals from his conviction, after a jury trial, of the disorderly persons offense of simple assault with a magnifying glass against his brother John Freeman, N.J.S.A. 2C:12-1a(1), as a lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); and fourth-degree unlawful possession of weapons, the magnifying glass and a hammer, N.J.S.A. 2C:39-5d. Defendant was found not guilty of third-degree terroristic threats, N.J.S.A. 2C:12-3, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Defendant was sentenced to time served of 536 days on the fourth-degree conviction, concurrent with a six-month sentence on the disorderly persons conviction.
Defendant argues his conviction should be reversed because of prosecutorial misconduct. He also argues the court erred in denying his motion for acquittal. Having considered defendant's arguments in light of the record and governing principles of law, we affirm in part and reverse in part.
At the time of incident on June 9, 2009, both defendant and John lived in the home of their elderly mother, Mary, who had suffered an incapacitating stroke in 2008. Defendant was fifty-two years old. John was a couple years older. John had recently moved back to the home after marital difficulties. He also had cancer and had received chemotherapy, but was still working as an x-ray machine repairman, traveling three or four days a week. Defendant had been residing at the home for an extensive period of time; he lived there after his mother was widowed in 1984. When she fell ill in 2008, he assisted in her care.
Defendant's and John's brother James had been appointed Mary's legal guardian after her stroke. James controlled Mary's income and assets, which supported the household and Mary's nursing care. James testified that defendant often made household purchases utilizing an account that James funded with his mother's assets and income. Defendant also made household purchases with his personal credit cards and was reimbursed from his mother's funds.
In an effort to simplify his management of his mother's finances, James attempted to require defendant to use a single debit card for household purchases. In a meeting between the two on June 9, 2009, defendant objected loudly. James left without giving defendant the card.
John met James later that night at James's house. James testified that he purchased three store-specific pre-funded gift cards. James gave the cards to John and proposed that he make household purchases with them. However, John testified that he understood that the various cards were intended for defendant's use.
John returned to the family home with the cards and John and defendant engaged in an argument. John testified that defendant cursed, and loudly told him he would refuse to use the cards. John testified, "I explained to him that [James] was in contact with the family attorney and that he would be getting something in the mail." John retreated to his room and locked the door. Defendant continued to yell.
After a while, John left his room to get something to eat. John testified that defendant entered the dining room from the garage holding up a hammer and told John that if "his status changed in the house, that he was . . . going to kill me." John testified that he told defendant he was "going to get a surprise . . . from [James's] lawyer"; then defendant put down the hammer, closed the door to the garage, and "threw a magnifying glass at me and something else at me." John could not say whether the item shattered, but he insisted it "broke." He testified, "I believe it hit me, and it hit ...