State v. Natale
| Citation | 792 A.2d 565,348 N.J. Super. 625 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Michael J. NATALE, Defendant-Appellant. |
| Decision Date | 11 March 2002 |
| Court | New Jersey Superior Court |
Edward J. Crisonino, Cherry Hill, argued the cause for appellant.
Robin A. Hamett argued the cause for respondent (Lee A. Solomon, Camden County Prosecutor, attorney; Ms. Hamett, Assistant Prosecutor, of counsel and on the brief).
Before Judges CONLEY, A.A. RODRIGUEZ and LEFELT.
The opinion of the court was delivered by CONLEY, P.J.A.D.
Defendant's criminal convictions and sentences, including a NERA1 sentence enhancement, arose from a battering of his live-in girlfriend that occurred over a number of hours and involved different forms of assaultive conduct and different forms of weapons. In addition to attempted murder, the indictment included third-degree aggravated assault under N.J.S.A. 2C:12-1b(2) () and third and fourth-degree weapons offenses. There were several deadly weapons charged in the indictment and charged to the petit jury. They were "speakers and/or candle holder and/or opera glasses and/or statue and/or door." The jury instructions charged as lesser included offenses of the attempted murder count, second-degree aggravated assault under N.J.S.A. 2C:12-1b(1) () and third-degree aggravated assault under N.J.S.A. 2C:12-1b(7) (). As to these included offenses, the jury verdict form did not contain separate interrogatories for their alternative causing or attempting elements. Thus, when the jury acquitted defendant of attempted murder but convicted him of the 2C:12-1b(1) second-degree aggravated assault, the verdict on that does not reflect whether the jury found that he caused serious bodily harm or only attempted to do so. Similarly, the verdict did not include separate interrogatories with respect to the weapons charges as to which weapon or weapons were used. Thus, while the jury convicted defendant of third-degree aggravated assault under N.J.S.A. 2C:12-1b(2) (), the verdict does not reflect which of the implements included in the charge (speakers, candle holder, opera glasses, statue, door) defendant used to inflict the bodily injury element of that offense.
The convictions included not only the second and third-degree aggravated assaults, but fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4d; third-degree terroristic threats, N.J.S.A. 2C:12-3a, b; and third-degree criminal restraint, N.J.S.A. 2C:13-2a, b. Concurrent five year terms on the latter two convictions were imposed consecutive to a nine-year term with an eighty-five percent disqualifier on the second-degree aggravated assault into which the third-degree assault and weapons convictions were merged.
On appeal, defendant contends:
POINT I THE NO EARLY RELEASE ACT SHOULD NOT HAVE BEEN APPLIED TO DEFENDANT'S SENTENCE UNDER COUNT ONE.
POINT II THE COURT SHOULD HAVE INSTRUCTED THE JURY ON THE LESSER INCLUDED CHARGE OF SIMPLE ASSAULT.
POINT III THE COURT SHOULD NOT HAVE CHARGED SECOND DEGREE AGGRAVATED ASSAULT OVER DEFENDANT'S OBJECTION.
POINT IV THE TRIAL COURT IMPROPERLY ALLOWED VIOLATIONS OF ITS SEQUESTRATION ORDER.
POINT V THE SENTENCE IMPOSED ON COUNT ONE WAS EXCESSIVE.
POINT VI THE VICTIM, AND THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO ARGUE THE VICTIM SUFFERED PERMANENT INJURIES.
We have considered these contentions in light of the record and applicable law. We are convinced that all but the NERA sentence enhancement issue are without merit and require no further opinion. R. 2:11-3e(2).
As we have said, the jury verdict did not identify whether the second-degree assault was premised upon an actual infliction of serious bodily injury or only an attempt to so inflict. Neither was the use or threatened use of a deadly weapon a predicate of that conviction. A NERA sentence enhancement, therefore, was problematic. State v. Staten, 327 N.J.Super. 349, 354, 743 A.2d 365 (App.Div.), certif. denied, 164 N.J. 561, 753 A.2d 1153 (2000) ().2 See also State v. Thomas, 166 N.J. 560, 573-74, 767 A.2d 459 (2001) (); State v. Parolin, 339 N.J.Super. 10, 20-21, 770 A.2d 1204 (App.Div.), certif. granted, 169 N.J. 609, 782 A.2d 426 (2001) ().
Putting aside the guilty plea setting, see generally, State v. Shoats, 339 N.J.Super. 359, 370, 772 A.2d 1 (App.Div.2001), where there is a conviction by a jury, the NERA sentence enhancement element applicable to a particular first or second-degree conviction must be found by the jury beyond a reasonable doubt. State v. Johnson, 166 N.J. 523, 544, 766 A.2d 1126 (2001). The clearest case, of course, would be where the jury expressly finds such element as part of its finding of guilt on a first or second-degree offense. But even when the elements of the crime the jury has returned a verdict on do not "overlap completely" with the applicable NERA predicate, that factual predicate can otherwise be determined to have formed a basis for the conviction. Id. at 545-46, 766 A.2d 1126.
Here, in imposing a NERA sentence enhancement, the trial judge looked to the jury's guilty verdict on the third-degree aggravated assault, realizing that the second-degree aggravated assault would not suffice. During the sentencing proceeding, the judge said:
The jury found in finding the defendant guilty of aggravated assault with a deadly weapon that the defendant did, in fact, have a deadly weapon and used those to inflict injury. And, therefore, that finding that he possessed a deadly weapon persuades this Court that the aggravated assault under Count 1 was the result of the use of a deadly weapon. And there was testimony before the jury that the defendant attacked the victim with a number of items ... [that] would have met the definition of a deadly weapon and, accordingly, I find that for sentencing purposes [Defendant] clearly comes within purview of the No Early Release Act.
[Emphasis added.]
Additionally, the judge's written "Statement of Reasons and Sentence" states in part:
[I]t is beyond dispute that the jury did find that the defendant used a deadly weapon. This is so because the jury found the defendant guilty under [the third-degree] Aggravated Assault with a Deadly Weapon. The definition of a deadly weapon under 2C:12-1b(2) is identical to the definition of a deadly weapon under the No Early Release Act. Although the 3° conviction under Count 2 cannot come within the purview of the No Early Release Act because it is only a 3° conviction, the jury's finding in Count 2 that the defendant utilized a deadly weapon therefore subjects him to sentencing under the No Early Release Act for Count 1 even though using a deadly weapon is not a required element of serious bodily injury type of Aggravated Assault. Accordingly, the Court finds that the No Early Release Act applies to the sentencing under Count 1 for 2° Aggravated Assault, because the defendant used a deadly weapon.
[Emphasis added.]
At the outset, we acknowledge that the jury instructions on what constitutes a deadly weapon in the context of the third-degree aggravated assault did dovetail with that of NERA's deadly weapon definition. We need not, therefore, involve ourselves in the differences between the NERA deadly weapon definition and others. See generally State v. Jules, 345 N.J.Super. 185, 189-90, 784 A.2d 722 (App. Div.2001),certif. denied, 171 N.J. 337, 793 A.2d 715 (2002); State v. Austin, 335 N.J.Super. 486, 490-91, 762 A.2d 1052 (App.Div.2000),certif. denied, 168 N.J. 294, 773 A.2d 1157 (2001). On the other hand, we cannot say that, although the jury verdict does not expressly include a finding that defendant caused serious bodily injury, we are satisfied the jury did, in fact, so conclude.3Compare State v. Johnson, supra, 166 N.J. at 545-46, 766 A.2d 1126.
Johnson involved a first-degree robbery conviction. At the time of the robbery, defendant possessed a BB gun. That was the robbery's first-degree predicate. First-degree robbery, where possession of a firearm is the predicate, can be established by a jury finding that the defendant "is armed with, or uses or threatens the immediate use...." of a deadly weapon. N.J.S.A. 2C:15-1b. But unlike the first-degree robbery predicate, which can be established by mere possession of a deadly weapon during the course of the robbery, the NERA deadly weapon predicate requires a jury finding of use or threatened use. Merely possessing a deadly weapon during the course of a first or second-degree offense does not suffice. State v. Shoats, supra, 339 N.J.Super. at 364-67, 772 A.2d 1; State v. Grawe, 327 N.J.Super. 579, 593-95, 744 A.2d 246 (App. Div.), certif. denied, 164 N.J. 560, 753 A.2d 1152 (2000).4
In State v. Johnson, supra, 166 N.J. 523, 766 A.2d 1126, while the jury verdict did not reflect whether the armed aspect of the first-degree robbery was premised upon actual or threatened use, as opposed to mere possession, of a deadly weapon, the Court was confidently...
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