State v. Washington

• Decision Date: 04 March 2021
• Docket Number: DOCKET NO. A-2210-18
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY M. WASHINGTON, a/k/a RICKY WASHINGTON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY M. WASHINGTON, a/k/a RICKY WASHINGTON, Defendant-Appellant.

DOCKET NO. A-2210-18

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted January 6, 2021

March 4, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Sumners, Geiger, and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 17-08-1775.

Joseph E. Krakora, Public Defender, attorney for appellant (Melanie K. Dellplain, Assistant Deputy Public Defender, of counsel and on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (John J. Santoliquido, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Washington appeals his conviction, after a jury trial, of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); attempted burglary, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:18-2(a)(1); and disorderly persons criminal mischief, N.J.S.A. 2C:17-3(a)(1). Considering the record and applicable legal principles, we affirm defendant's conviction but remand the matter for re-sentencing.

We discern the following facts from the trial record. Defendant and D.C.¹ were friends and intermittently dated, most recently, for seven months in 2017. Because defendant engaged in harassing and violent behavior, and often accused D.C. of being unfaithful, D.C. ended the relationship. Thereafter, D.C. reported to police a string of domestic violence incidents perpetrated by defendant.

On April 28, 2017, defendant sucker punched D.C. in the face when she went to his residence to return his belongings. On May 1, 2017, Officer Joseph Akeret, an Absecon Police Department patrol officer, was dispatched to D.C.'s home after she reported someone knocking on the door. While en route Akeret, passed defendant. Because he matched a description given by D.C., he wasarrested. On May 22, 2017, Officer Mark Williams, another patrolman in the department was dispatched to D.C.'s residence after she reported someone trying to break into her front door. D.C. identified defendant as the perpetrator.

On the night of May 26, 2017, defendant showed up at D.C.'s home, unscrewed the flood lights outside her house, and kicked down her door. To prevent defendant from entering, D.C. placed a table in front of the doorway as a barricade. D.C. identified the intruder as defendant when he squeezed the right half of his body through the barricade. D.C. called police and Officer Ryan O'Connell, a third patrolman in the Absecon Police Department, was dispatched to investigate. Upon arrival, O'Connell observed the door was slightly ajar and damaged, and the exterior lightbulbs removed from the fixtures as D.C. reported.

D.C.'s landlord went to the residence after the May 26, 2017 incident and saw that the door had been kicked in. He went to the police station to file a complaint against defendant for defiant trespassing and malicious damage to property.

Beginning at 8:47 a.m. on Saturday, May 27, 2017, defendant sent D.C. several Facebook messages. One message read: "I need to know. Did you go to [the police]? Yes or no?" Another message stated: "I can't wait. My next move will be my best move and my last move." In the early morning on May28, 2017, when D.C. arrived home from a party, she discovered that one of her tires was flat. While D.C. was examining her car, defendant appeared "right in [her] face." D.C. fell and defendant began to stab her in her upper back, hand, and leg. D.C. indicated that she felt like defendant held the knife by its blade so that only the tip of the knife penetrated her. Defendant fled after a resident shouted down at him. He was arrested later that day for aggravated assault arising from the May 26 and May 28, 2017 incidents.

At trial, several of the officers who responded to D.C.'s calls testified. Over defense counsel's objection, Williams testified that he believed D.C.'s account regarding the May 22, 2017 incident. Also, over defense counsel's objection, O'Connell testified that he found D.C. to be credible regarding defendant's attempt to burglarize D.C.'s residence on May 26, 2017. During summation, the prosecutor referred to defense counsel's contention that D.C. self-inflicted her injuries as "silly" and a "crazy conspiracy" theory. The prosecutor also referred to the fact, not previously introduced into evidence, that defendant threw soda on D.C.

Defendant filed a motion for a new trial on several grounds, which was denied in a December 4, 2018 hearing. At the December 12, 2018 sentence, the judge highlighted defendant's criminal record of twenty-nine arrests, seventeenprior convictions, nine of which were for indictable offenses. Defendant also had a history of domestic violence, including four active final restraining orders, and one conviction for domestic violence contempt. Defendant had been released from prison on October 25, 2016.

The judge found that aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense) applied because the victim suffered eleven stab wounds.² He gave this factor moderate weight. The judge also determined that aggravating factors three, six, and nine applied. N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); (a)(6) (extent of prior criminal record); (a)(9) (need for deterrence). He accorded these factors substantial weight. The judge applied aggravating factor fifteen as well. N.J.S.A. 2C:44-1(a)(15) (offense involved an act of domestic violence and defendant committed at least one act of domestic violence on more than one occasion). The judge gave this factor moderate weight. Finally, the judge found that no mitigating factors existed. In the absence of any mitigating factors, the judge concluded the aggravating factors preponderated.

The judge granted the State's application to impose a discretionary extended term on count two (aggravated assault), and sentenced defendant to fifteen years' imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He merged count three (possession of a weapon with an unlawful purpose), with count two. The judge rejected defendant's request to merge count four (possession of a weapon under circumstances not manifestly appropriate), with count three and, instead, imposed a concurrent one-year sentence. He also sentenced defendant to a consecutive term of imprisonment of five years on count five (attempted burglary). Defendant was credited with time served on count six (criminal mischief).

On appeal, defendant raises the following arguments for our consideration:

POINT I

THE ATTEMPTED-BURGLARY CHARGE WAS INSUFFICIENT AS IT FAILED TO ADEQUATELY FOCUS THE JURORS' ATTENTION ON [DEFENDANT'S] INTENT AT THE TIME OF HIS ALLEGED ATTEMPTED ENTRY INTO THE [VICTIM'S] HOUSE AND TO INSTRUCT JURORS THAT THERE WERE POTENTIAL NON-CRIMINAL EXPLANATIONS FOR HIS ENTRY. (Not raised below).

POINT II

THE [VICTIM'S] PRIOR CONVICTIONS SHOULD HAVE BEEN ADMITTED TO IMPEACH HER CREDIBILITY, AS THE HIGH NUMBER OF CONVICTIONS REFLECTED A SERIOUS PATTERN OF CRIMINAL ACTIVITY AND THE CONSPIRACY TO COMMIT ROBBERY CONVICTION WAS SERIOUS AND INVOLVED DISHONESTY.

POINT III

THE JURY INSTRUCTION REGARDING EVIDENCE OF [DEFENDANT'S] PRIOR BAD ACTS WAS INSUFFICIENT BECAUSE IT DID NOT TAILOR THE CHARGE TO THE FACTS OF THE CASE, THEREBY FAILING TO INFORM JURORS OF THE PERMISSIBLE LIMITED PURPOSE FOR EACH PIECE OF EVIDENCE. (Not raised below).

POINT IV

THE STATE ELICITED IMPROPER TESTIMONY THAT [DEFENDANT] WAS ARRESTED FOR AN UNRELATED COMPLAINT AND HAD OUTSTANDING WARRANTS AT THE TIME OF HIS ARREST; THE COURT ERRED IN FAILING TO STRIKE THE TESTIMONY OR TO PROVIDE A LIMITING INSTRUCTION. (Not raised below).

POINT V

UNDER N.J.R.E. 701, POLICE OFFICERS SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY ABOUT THEIR OPINIONS ON THE [VICTIM'S] CREDIBILITY.

POINT VI

DURING SUMMATION, THE STATE IMPROPERLY DENIGRATED THE DEFENSE AND REFERENCED FACTS NOT IN EVIDENCE, DEPRIVING [DEFENDANT] OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

A. The State's comments during summation that the defense argument was "silly" and a "crazy conspiracy theory" denigrated the defense and thereby constituted impermissible prosecutorial misconduct.

B. The State's comment during summation that [defendant] threw soda at the [victim] was not based on evidence that was before the jury and thereby constituted impermissible prosecutorial misconduct.

POINT VII

THE CUMULATIVE IMPACT OF THE ERRORS DENIED [DEFENDANT] DUE PROCESS AND A FAIR TRIAL.

POINT VIII

[DEFENDANT'S] SENTENCE IS EXCESSIVE BECAUSE THE COURT: (1) ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM; (2) ERRED IN APPLYING AGGRAVATING FACTOR [ONE] TO THE ATTEMPTED-BURGLARY CHARGE AND DID NOT DISTINGUISH THE CHARGE FROM OTHERS IN ITS CLASS; (3) IMPOSED A $33.00 ASSESSMENT FOR COURT COSTS WITH NO BASIS TO DO SO; AND (4) ERRED IN FAILING TO MERGE HIS

WEAPONS POSSESSION CHARGES AND ATTEMPTED BURGLARY AND CRIMINAL MISCHIEF CHARGES.

A. The [fifteen-year] sentence for the aggravated assault offense constituted an abuse of discretion because the facts did not warrant an extended term and the sentencing court did not properly weigh the aggravating factors.

B. With respect to the attempted[]burglary offense, the sentencing court erred in applying aggravating factor [one] because it did not base this finding on facts related to the attempted[]burglary offense.³

C. The sentencing court improperly imposed a $33.00 assessment for court costs on count six (criminal mischief).

D. The sentencing court should have merged (i) counts three (possession of a weapon for an unlawful

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