State v. Bull

CourtNew Jersey Superior Court – Appellate Division
Citation634 A.2d 101,268 N.J.Super. 504
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Rodney BULL, Defendant-Appellant.
Decision Date16 November 1993

Zulima V. Farber, Public Defender, for defendant-appellant (Neal M. Frank, Designated Counsel, of counsel and on the brief).

Andrew K. Ruotolo, Jr., Union County Prosecutor, for plaintiff-respondent (Robert A. Suarez, of counsel and on the brief).

Before Judges BAIME, CONLEY and VILLANUEVA.

The opinion of the court was delivered by

CONLEY, J.A.D.

Following a jury trial, defendant was convicted of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b) (count two); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count three); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count five), and third-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(d) (count six). The State's motion for a persistent offender extended term pursuant to N.J.S.A. 2C:44-3(a) was granted. An extended term of fifty years with a parole disqualification of eighteen years was imposed on count one. Counts two and six were merged with count one. A concurrent ten-year custodial term with a five-year parole disqualification was imposed on count three. A consecutive term of eighteen months with a nine-month parole disqualification was imposed on count five. A $90.00 Violent Crime Compensation Board penalty was also imposed.

The convictions arose from the following evidence. On or about 12:00 a.m. on April 20, 1990, Dulcinea Goncalves, a nursing assistant at Elizabeth General Medical Center in Elizabeth New, Jersey, finished her shift and was walking to her car when a man grabbed her hair and jacket, placed a sharp object against her back, and said, "Do not scream or say anything or I kill you." She gave him her pocketbook, and moved her arm to her back where she touched something plastic in the same location as the sharp object. She then was thrown to the ground and beaten.

At the same time, two fellow employees, Walter Hix and William Brady, who were leaving in their car, observed the man run after Goncalves. Worried for her safety, they drove back towards the location where she was last seen. After hearing muffled screams, they exited the car and ran in the direction of the screaming. There, Hix saw a man on top of Goncalves. The man ran away as Hix and Brady approached. Brady gave chase, but was unable to catch the assailant.

As a result of the beating, Goncalves suffered a broken jaw, a fractured orbit bone, a fractured bone in the middle ear, T.M.J. residuals, eight broken teeth, and abrasions and contusions over eighty percent of her body. She remained in the hospital for one week recuperating from her injuries.

Shortly after the attack, Hix found a butcher knife in close proximity to the location where Goncalves was assaulted. The knife was ultimately given to Officer Frank Sebasco of the Elizabeth Police Department. It was sent to the F.B.I. for fingerprint analysis. That analysis identified the fingerprints as belonging to defendant.

During the police investigation of the assault, Hix looked through several hundred photographs but was unable to identify the perpetrator. Defendant's photograph was not included. A week or two later, he and Goncalves viewed a line up of six men, including defendant. Goncalves was unable to make a positive identification, however, Hix identified defendant as Goncalves's assailant. On April 30, defendant was arrested and charged with the assault. At the time of his arrest, a plastic utility knife was found in his possession. During the trial Goncalves testified that that knife felt like the sharp object that had been held to her back during the assault.

On appeal, defendant contends:

POINT I: THE TRIAL COURT ERRED IN FAILING TO MERGE THE DEFENDANT'S CONVICTION OF UNLAWFUL POSSESSION OF A WEAPON UNDER N.J.S.A. 2C:39-5(d) WITH DEFENDANT'S CONVICTION FOR "ARMED ROBBERY" UNDER N.J.S.A. 2C:15-1. (Not Raised Below).

POINT II: THE TRIAL COURT ERRED IN REFUSING TO PERMIT THE DEFENDANT TO INTRODUCE EVIDENCE OF A PRIOR ASSAULT OCCURRING WITHIN AN HOUR OF THE ASSAULT IN THE INSTANT CASE, WHICH PRESUMABLY WAS COMMITTED BY ANOTHER INDIVIDUAL.

POINT III: THE COURT ERRED IN ADMITTING S-5 (THE UTILITY KNIFE) INTO EVIDENCE WHEN THERE WAS NO TESTIMONY IDENTIFYING IT AS BEING USED IN ANY OF THE CRIMES CHARGED.

POINT IV: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO MOVE TO DISMISS THE INDICTMENT BASED UPON A LACK OF EVIDENCE PRESENTED TO THE GRAND JURY. (Not Raised Below).

POINT V: THE COMBINATION OF ERRORS COMMITTED BY THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We have carefully considered these contentions in light of the transcripts, briefs, and applicable law. We are convinced points III, IV and V are clearly without merit. R. 2:11-3(e)(2). With the exception of the merger issue raised in point I, we find no abuse of discretion in the sentence and our conscience is not shocked. State v. O'Donnell, 117 N.J. 210, 215-16, 564 A.2d 1202 (1989); State v. Ghertler, 114 N.J. 383, 387-88, 555 A.2d 553 (1989); State v. Dunbar, 108 N.J. 80, 87, 527 A.2d 1346 (1987). We address points I and II, in reverse order.

I.

During the trial, James Torres, a security guard for the hospital, testified that around 11:00 p.m. he had seen a man "hanging around the lobby and scoping out the nurses, you know, coming in and out." Shortly thereafter, at about 11:20 p.m., he was told that someone was being mugged in the parking lot. When he went outside, he observed a woman on the sidewalk, bleeding and took her into the hospital. He later identified a photograph of the individual he had seen hanging around the lobby. That photograph was placed in evidence. It is fairly apparent, though not entirely clear from a reading of the transcript, that the photograph was not of defendant. Moreover, Torres was extensively questioned on his description of the man he had seen around 11:00 p.m. That description is different from the description given by Hix and Goncalves of Goncalves' attacker.

During defense counsel's cross-examination of Detective Mularz, one of the investigating officers, the following occurred:

Q. Now, early in the investigation you spoke to a James Torres?

A. Yes.

Q. And James Torres was involved in taking another employee of the hospital to her home some, I don't know hour before Dulcinea's assault?

A. Within a half hour before.

Q. And--

[PROSECUTOR]: Judge, may I interject? I would like to be heard at sidebar.

THE COURT: I don't think there's any necessity for that because I know what the basis of the objection is and [Defense counsel] is not going to get into the issues as to why he did that.

[DEFENSE COUNSEL]: I would like to be heard, Judge.

THE COURT: Is that it?

[PROSECUTOR]: I think we're on the same track but there's a concern in terms of the witness as well as [DEFENSE COUNSEL] that's got me worried.

THE COURT: There's to be no discussion about what Mr. Torres did or why, other than he was not there, period.

Next question. Let's go.

[DEFENSE COUNSEL]: I would like to be heard on that, if I may.

....

[DEFENSE COUNSEL]: The fact that the victim of the Torres matter was unable to make any identification or the fact that the police believed that that victim was assaulted by a different person doesn't mean that it's not relevant, that Torres might have been describing a man who, in fact, also assaulted Dulcinea since the photograph which she--

THE COURT: You have every right in the world to give the description that Torres gave him as to what he saw but you do not have a right to go into the issue that there was a prior assault that day that may involve another male. I am not opening this case up to a mini trial within a mini under Rule 4. It would take a substantial amount of time that would clearly be substantially outweighing any probative value.

[DEFENSE COUNSEL]: I'm not interested in establishing that there was another assault by another man. I'm interested in establishing that sometime prior to Dulcinea's assault there was a man who was seen and that James Torres ultimately picked out a photograph that in the general sense fits the character--

THE COURT: You don't have a right to do that. I don't want to get into the second assault issue.

However, defense counsel then asked the officer:

Q. Mr. Torres gave you information on the 24th of April, did he not?

A. Yes.

Q. And you understood that Mr. Torres was an employee of the hospital who was present at the scene at about 11 p.m. on the evening in question?

....

A. I would say a little bit later than 11 p.m., judging by what he's saying in time because Mr. Torres had left and approximately 20 minutes later he was aware of this incident. So that's later than 11 p.m.

Q. And among other things, Mr. Torres looked at some photographs in the possession of the Elizabeth Police Department?

A. Yes, he did.

Q. And he selected a photograph of a person he had seen in the area, correct?

A. That he felt he had seen, he wasn't absolutely certain.

Q. And he said 97 percent, is that not the case?

A. That's what he said.

[DEFENSE COUNSEL]: Can I have an item marked?

Q. I show you D-6 for I.D. and ask you if that's a picture of the photograph that was shown to--that Mr. Torres selected?

A. Yes, it is.

As we have previously noted, the photograph ultimately was placed in evidence and, presumably, is not of defendant.

Defendant argues in point II that the trial judge erred in ruling that he could "give the description that Torres gave him as to what he saw but you do not have a right to go into the issue that there was a prior assault that day that may...

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