State v. Belony
| Decision Date | 11 May 2022 |
| Docket Number | A-3674-19 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRITZ BELONY, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 9, 2022
On appeal from the Superior Court of New Jersey, Law Division Essex County, Indictment No. 18-10-3299.
Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Kevin S. Finckenauer, of counsel and on the briefs).
Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor attorney; Barbara A. Rosenkrans, of counsel and on the brief).
Before Judges Sabatino and Rothstadt.
Defendant Fritz Belony appeals from a February 27, 2020 judgment of conviction that was entered after a jury found him guilty of committing second-degree aggravated assault, N.J.S.A 2C:12-1(b)(1), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), but acquitted him of first-degree robbery, N.J.S.A. 2C:15-1(a)(1). He also challenges his aggregate seven-year sentence, which was subject to a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, period of parole ineligibility.
On appeal, defendant specifically argues the following points:
We are not persuaded by defendant's challenge to the video recording's admission into evidence. However, we conclude that, in her summation, the prosecutor exceeded the limits on permissible comments, and for that reason we are constrained to vacate the judgment of conviction and remand the matter for a new trial. Because we are remanding for a new trial, we do not address defendant's contentions about his sentence.
The facts leading to defendant's arrest and conviction as developed at his trial are summarized as follows. In 2017, defendant began living in his friend Yves Exil's home. Although it was understood defendant would not pay rent or utilities, there was an oral arrangement that defendant would help maintain the home and occasionally cook for everyone and their guests.
By December 2017, Exil's son, Enock Desravines, the victim in this matter, also began living in the same house. After moving in with defendant and Exil, Desravines would invite a woman named Marie to visit with him at his father's home. At the time, Marie was living with her child and a man at another location, and it was unclear what her relationship with Desravines was beyond being friends.
In the summer of 2018, defendant agreed to move out within two months at Exil's request due to the expected arrival of Desravines's son, who was scheduled to leave Florida to begin living with Exil and Desravines in September. By late July, defendant found an apartment to move into that would be ready in a week's time.
Before defendant moved out of the apartment, on the evening of July 28, 2018, Desravines was stabbed in the back of the neck. He claimed it was defendant who assaulted him. Defendant denied stabbing Desravines but admitted to walking with Desravines near their home that evening. According to defendant, two unidentified individuals ambushed them before one of the two stabbed Desravines in his neck.
After being attacked, Desravines ran into a local Rite Aid where an employee tended to him before police and an ambulance arrived. After the police arrived, an officer wearing a bodycam obtained information from Desravines, including his identification of defendant as the person who stabbed him. As depicted on the bodycam recording, defendant was bleeding extensively from the back of his neck. When the ambulance arrived, Desravines was treated and taken to a nearby hospital, where he received four stitches and was sent home.
When Desravines spoke to officers at the Rite Aid and again the next morning when he gave a formal statement at the police department, he did not mention that the person who stabbed him demanded he turn over his money. Desravines also did not mention to the hospital staff, who wrote their own report, that he was asked for money, nor did he do so a few months later when speaking to a defense investigator that interviewed him before trial. However, while at the Rite Aid, Desravines did express concern that defendant would be going back home to harm Exil.
Immediately after the stabbing, defendant did not follow Desravines, returning instead to Exil's home. Before leaving the scene of the attack, defendant picked up Desravines's phone that had fallen to the ground. Shortly thereafter, Exil found defendant crying outside their home. Eventually police found the two there and arrested defendant, who had possession of Desravines's phone, for the stabbing.
No further investigation was conducted by the police. They charged defendant with offenses arising from the attack based on Desravines's statement. Later, a grand jury returned an indictment, charging defendant with robbery, aggravated assault, unlawful possession of a knife, and possession of a knife for an unlawful purpose.
On November 13, 2019, the trial judge held a Rule 104 hearing and determined the bodycam video taken by the officer who responded to the Rite Aid was admissible despite defendant's objection that it was cumulative and unduly prejudicial.
Defendant's trial began on December 3, 2019. After opening statements, defense counsel requested the State redact comments from the Rite Aid video tape that were made by a Rite Aid employee, describing Desravines's injury, the employee's hope that the culprit would be caught quickly, and her relief when she learned a suspect was arrested. The trial judge denied that motion.
During the ensuing trial, Desravines and Exil testified for the State, and defendant testified on his own behalf. On December 6, 2019, the jury acquitted defendant of robbery but found him guilty of the remaining charges. On February 24, 2020, the trial judge sentenced defendant to the aggregate seven-year NERA term. This appeal followed.
We begin our review by addressing defendant's challenge to the trial judge's pretrial ruling that the bodycam footage could be admitted into evidence and played for the jury. The video began after the assault when the police arrived at the Rite Aid. It depicted Desravines speaking with officers and being treated for a stab wound on the back of his neck, which was bleeding down his back, soaking his shirt.
In the video, Desravines is heard identifying defendant as the person who stabbed him but being unable to provide a reason for defendant doing so, other than his father telling defendant he had to move out. Also, Desravines expressed concern that he was dying and, as already noted, that defendant would harm his father.
Also, as already noted, in the video, an employee is heard describing Desravines's condition, stating, "you're bleeding really bad," "the blood is gooshing [sic] out," and "he going to be dying over here." The employee also stated the police should find whoever assaulted Desravines and "lock his ass up," and, after hearing the police apprehended defendant, stated,
At the Rule 104 hearing to determine the admissibility of the bodycam footage, Detective Frank Piombo, formerly an East Orange patrol officer, testified that he responded to the Rite Aid after he received a call that a man was stabbed that the recording was from his camera, and it...
To continue reading
Request your trial