STATE OF NEW JERSEY v. BONAIR BATTLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6767-03T46767-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BONAIR BATTLE,

Defendant-Appellant.

___________________________________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, Indictment

No. 03-10-0972.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Alan I. Smith, Designated

Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Steven E. Braun,

Chief Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

The indictment charged Bonair Battle with two counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). Pursuant to a negotiated plea, Battle pled guilty to the indictment with a recommendation of a three-year prison sentence concurrent to another sentence he was serving. On the sentencing date, the trial judge rejected the plea as contrary to the interests of justice unless the sentence could be consecutive to the previously imposed sentence. Battle rejected that offer, and the case was tried to a jury, which returned verdicts of guilty of simple assault under count one and third degree aggravated assault on count two. The judge granted the prosecutor's motion for an extended term because Battle was a persistent offender and sentenced him to prison for six months on count one concurrent to a seven year term on count two, which was made consecutive to the sentence Battle was then serving. Battle appeals, and we affirm.

Since Battle does not contend that the verdict was against the weight of the evidence, a brief summary of the trial evidence will do. On June 27, 2003, Battle was an inmate in the Passaic County jail. Around 2:00 p.m., inmates began throwing water and running around. Numerous officers responded, and a scuffle involving Battle ensued. Battle bit Officer Douglas on his left ring finger with sufficient force to break the skin and cause bleeding. Battle also bit Sergeant Moschella on the upper part of his right calf. In addition, Moschella fell during the struggle and tore his rotator cuff. By June 2004, when the case was tried, Moschella had still not been able to return to work.

On appeal, Battle offers the following arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY VACATING THE DEFENDANT'S PLEA AGREEMENT

(NOT RAISED BELOW)

POINT II

THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND PREJUDICED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS TO AN IMPARTIAL JURY AND TO EFFECTIVE ASSISTANCE OF COUNSEL BY ITS DISCRETIONARY RULINGS

(A)

THE TRIAL COURT UNFAIRLY PREJUDICED THE DEFENDANT'S RIGHT TO AN IMPARTIAL JURY BY DIRECTING THAT DEFENSE COUNSEL USE MULTIPLE PEREMPTORY CHALLENGES

(B)

THE TRIAL COURT UNFAIRLY PREJUDICED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY LEAVING THE BENCH TO ADDRESS THE JURY PANEL IN THE "WELL" OF THE COURTROOM

POINT III

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY STATEMENTS MADE BY THE PROSECUTOR IN SUMMATION

POINT IV

IMPOSITION OF AN EXTENDED TERM SENTENCE OF SEVEN (7) YEARS ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT ON COUNT TWO WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF THE COURT'S DISCRETION, AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER

(B)

IMPOSITION OF THE DISCRETIONARY EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON.

After carefully considering the record and briefs, we are satisfied that all of Battle's arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Nonetheless, we will comment on them briefly.

The trial judge did not abuse his discretion in rejecting the plea agreement. At the time of the plea, there was no indication of the seriousness of the injuries suffered by Moschella. All Battle acknowledged was that the "two officers were injured . . . ." At the time of sentencing, the judge had received a letter from Moschella detailing just how serious the rotator cuff injury was and the necessity for surgery and extensive rehabilitation. Finding that "the crime has taken a toll on [Moschella] and his family both physically and emotionally," the judge concluded that the plea would not be in the interests of justice unless the sentence could be consecutive to the one Battle was then serving.

A judge may refuse a guilty plea when "the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel . . . ." R. 3:9-3(e). Of course "[s]imply concluding that the interests of justice would not be served is insufficient if reasons are not provided that support such a conclusion or if the rationale is based on an incorrect legal analysis." State v. Madan, 366 N.J. Super. 98, 114 (App. Div. 2004). And although "[t]he views of the victim's family may be taken into consideration when considering a plea agreement, . . . the family's level of grief or degree of dissatisfaction with the plea cannot be controlling." Id. at 114. The record does not support Battle's contention that the judge paid undue attention to Moschella's letter, or to its reference about the effect on Moschella's family. Rather, it shows that the plea was rejected because the injury was greater than had been indicated at the time of the plea and thus warranted more severe punishment. Therefore, we are satisfied that the judge did not abuse his discretion in insisting that a three year sentence would be appropriate only if it was consecutive to the sentence Battle was then serving.

Battle's claim that he was prejudiced by the judge's insistence that he use multiple peremptory challenges is without merit because the judge never made such an order. In State v. Brunson, 101 N.J. 132, 145 (1985), the Court said that until further notice, trial judges "should refrain from using peremptory challenge procedures that differ from the customary, one-for-one, alternating method." But in State v. Papasavvas, 163 N.J. 565, 603 (2000), the Court noted this subject still "appears to have been left to the discretion of courts with little guidance and without uniformity." At present, Rule 1:8-3(e)(2) provides that "[i]n any case in which there is more than one defendant and/or an uneven number of peremptory challenges, the court shall establish the order of challenge, which shall be set forth on the record prior to the commencement of the jury selection process." Although the trial judge did not "establish the order of challenge," he also did not insist on the use of multiple challenges by Battle.

When the challenges began, the State said the jury was satisfactory, and defense counsel excused one juror without comment from the judge. The State then excused the next juror. After the replacement juror was questioned, defense counsel excused another juror without comment from the judge. On the next round, the State accepted the jury, and defense counsel excused a juror without comment from the judge. The same thing occurred on the next two rounds. When the State indicated again that the jury was satisfactory, the judge said, "Defense. Please use multiple challenges, if you can" (emphasis added). Defense counsel excused one juror, and the judge said nothing further. On the next round, the State exercised a challenge, and after further voir dire, defense counsel excused a juror with no comment from the judge. Next the State excused a juror, and after further voir dire, the judge said, "Challenges. Defense. Please use multiple challenges." Defense counsel excused one juror and the judge made no adverse comment. The same thing occurred with the next defense challenge. But when the State then indicated that the jury was satisfactory, the judge called on defense counsel without referring to multiple challenges, and one juror was excused.

At this point, defense counsel asked that the entire panel be dismissed stating his reasons in this manner:

I made an application at the beginning of the case where I asked you to please not instruct me or request that I use multiple challenges. You have done that five times now and you do it every time just before I'm about to have my turn to say whether I want to challenge or not.

I used, I believe, thirteen challenges. The State has not once used a multiple challenge and you have not requested that of the State.

Although the judge rejected the motion, he made no mention of multiple challenges when defense counsel excused the next juror. However, the next time, he did say, "Please use multiple challenges." But he made no adverse comment when only one juror was excused, and he did not ask for multiple challenges when it was again time for the defense to exercise a peremptory challenge.

Had the trial judge ordered the use of multiple challenges without following the dictates of Rule 1:8-3(e)(2), a reversal might be required. But a request is not an order; nor could the jury have taken it as such when the judge never prevented counsel from exercising one challenge at a time, nor criticized him for so doing. Rather, the judge said in front of the jury on the first occasion that multiple challenges should be used "if you can." Nonetheless, we do not endorse the judge's practice since a judge should not ask an attorney to do something that he has a right not to do.

Although we also do not endorse the trial judge's practice of leaving the bench to address the jury panel in the well of the courtroom, we reject Battle's argument that such behavior caused him prejudice simply because other judges do not do it.

Relying on the principles that a prosecutor may not comment on a defendant's failure to testify at trial, State v. Torres, 313 N.J. Super. 129, 150-51 (App. Div.), certif. denied, 156 N.J. 425 (1998), and may not cast aspersions on defense counsel's veracity, State v. Munoz, 340 N.J. Super. 204, 218 (App. Div. 2001), Battle complains about this statement made by the prosecutor during summation:

There's the testimony of Officer Douglas that he was bitten on the finger before the sergeant and the defendant fell to the ground. So either Officer Douglas is telling the truth and this bite occurred long before anybody even considered O.C. spray or he's lying, and you have to make that call.

Defense counsel objected, arguing that the "he" referred to defendant and that the statement was made when the prosecutor was standing behind defendant and gesturing toward him. The sentence simply cannot be read as making any such assertion, and therefore the judge was correct in overruling the objection.

 
Finally, we reject defendant's challenges to the sentence. We do not interfere in sentencing unless the legal error is clear. State v. Kromphold, 162 N.J. 345, 355 (2000). Since this defendant had four prior convictions, we cannot fault the judge for approving the motion for an extended term or for his findings on the presence of aggravating factors 3, 6, and 9, and a lack of mitigating factors. Nor did the imposition of an extended term violate Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005).

Affirmed.

(continued)

(continued)

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A-6767-03T4

December 8, 2005