Submitted November 13, 2014
Approved for Publication January 6, 2015.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-05-1305.
Fusco & Macaluso, L.L.C., attorneys for appellant ( Amie E. DiCola, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent ( Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges ASHRAFI, KENNEDY, and O'CONNOR. The opinion of the court was delivered by ASHRAFI, J.A.D.
[438 N.J.Super. 519] OPINION
[438 N.J.Super. 520] ASHRAFI, J.A.D.
Defendant Hugo Fierro, formerly a City of Newark police officer, appeals from his conviction by a jury for simple and aggravated assault and for official misconduct. We affirm.
In May 2012, defendant was indicted by a grand jury on five counts: (Count One) second-degree official misconduct, N.J.S.A. 2C:30-2; (Count Two) third-degree aggravated assault causing significant bodily injury, N.J.S.A. 2C:12-1(b)(7); (Count Three) third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); (Count Four) fourth-degree aggravated assault by pointing a handgun at another person, N.J.S.A. 2C:12-1(b)(4); and (Count Five) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
Defendant was tried before a jury in February 2013. The jury acquitted him of aggravated assault as charged in the second count, which required proof that he caused or attempted to cause significant bodily injury, and it acquitted him of the fourth and fifth counts charging the pointing and unlawful possession of his handgun. The jury found defendant guilty of simple assault as a lesser-included disorderly persons offense of the second count of the indictment, and guilty of third-degree aggravated assault with a deadly weapon and second-degree official misconduct.
On April 29, 2013, the court sentenced defendant to five years imprisonment without parole. The five-year prison term was the minimum sentence required under a statute enacted in 2007 that imposes mandatory sentences without parole if a public official commits certain crimes, including official misconduct, and the crime " involves or touches such office or employment." N.J.S.A. 2C:43-6.5.
[438 N.J.Super. 521] The evidence at the trial showed the following facts. Defendant was born in Ecuador and is a naturalized citizen of the United States. He was a long-time resident of Newark and an eleven-year veteran of the Newark Police Department. While off-duty on the night of May 7 into May 8, 2011, defendant and his wife went to dinner, followed by several hours of dancing. After the dancing, they went to a bar in the Ironbound section of Newark for coffee and a nightcap.
When they arrived outside the bar, defendant saw several men drinking openly on the sidewalk. He went toward the men and ordered them to disperse. He then saw a man swaying and stumbling near the entrance of the bar. Defendant identified himself as a police officer and spoke to the man for several minutes. He then took the man by the arm and led him toward the street for the purpose of getting a taxi to take the man home.
As defendant was talking with the intoxicated man in an animated manner, another man approached. We will refer to the other man as the victim of the assault by defendant. The versions of defendant and the victim differ regarding what occurred next.
The victim testified in Spanish at defendant's trial that he had spent the night at someone's house watching boxing matches on television. At about 1:45 a.m., he was on his way to the same bar to which defendant and his wife were going. He testified that he was not drunk. As he walked from his car toward the bar, he was holding his car keys tied to a string. He saw two men talking in the middle of the sidewalk. When he got closer, one of the men, later identified as defendant, yelled to him " what's your problem? What's your problem?"
[438 N.J.Super. 522] According to the victim, defendant then tried to grab him by the front of his shirt, and the victim pushed defendant's hand away. As defendant tried to grab the victim a second time, the victim saw defendant take a handgun from his side. Defendant said he was a police officer, and the victim began backing away. Defendant came after the victim, pushed him in the chest, and then hit him in the face with the barrel of the gun he was holding. The victim turned and ran towards his home, his nose bleeding.
At home, the victim told his wife what happened. She washed off his face and gave him medicine to ease the pain of his swollen nose. He did not seek additional medical treatment, and he threw out the shirt on which he had bled. The next day, the victim and his wife went to the bar and learned that the man who had struck him was in fact a police officer. They went to the police station and reported the incident.
Police investigators testified that they showed the victim a photo array several months after the incident and he selected defendant's photograph as possibly the man who had struck him, but he was not positive of the identification. However, the incident had been recorded by a stationary outdoor surveillance camera, and defendant was identified positively as the officer who had struck the victim.
In the defense case, defendant first called a police lieutenant who had taken the report of the incident from the victim and his wife the day after it happened. The lieutenant testified that he formally reported the matter to the Newark Police Department's internal affairs unit. He also ...